Convention on the Prevention and Punishment of the Crime of Genocide: A Commentary 3406603173, 9783406603174

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Tams/Berster/Schiffbauer Convention on the Prevention and Punishment of the Crime of Genocide: A Commentary

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Convention on the Prevention and Punishment of the Crime of Genocide: A Commentary by Christian J. Tams, Lars Berster and Bjo¨rn Schiffbauer

C.H. BECK
Hart
Nomos 2014

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Published by Verlag C. H. Beck oHG, Wilhelmstraße 9, 80801 Mu¨nchen, Germany, eMail: [email protected] Co-published by Hart Publishing, 16C Worcester Place, Oxford, OXI 2JW, United Kingdom, online at: www.hartpub.co.uk and Nomos Verlagsgesellschaft mbH & Co. KG Waldseestraße 3–5 76530 Baden-Baden, Germany eMail: www.nomos.de Published in North America (US and Canada) by Hart Publishing, c/o International Specialized Book Services, 930 NE 58th Avenue, Suite 300, Portland, OR 97213-3786, USA, eMail: [email protected]

ISBN 978-3-406-60317-4 (Beck) ISBN 978-1-84946-198-6 (Hart Publishing) ISBN 978-3-8329-7269-1 (Nomos) ISBN 978-1-78225-262-7 (ePDF)

 2014 Verlag C. H. Beck oHG Wilhelmstr. 9, 80801 Mu¨nchen

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Preface 65 years ago, in the autumn of 1948, the drafting of the Convention on the Prevention and Punishment of the Crime of Genocide entered its final phase. When the General Assembly adopted Resolution 260 (III) A on 9 December 1948, endorsing the final text, its President, Herbert Vere Evatt, spoke of an ‘epoch-making event’. With the benefit of hindsight, we can say that he was correct. The fight against genocide has become one of the international community’s essential causes. In this fight, international law is an important tool. Many of its branches – among them international human rights law, international criminal law, collective security law – directly or indirectly address questions of genocide. The Genocide Convention however is at the heart of the fight: it defines the crime, it formulates essential obligations of states (such as the duty to prevent and punish genocide), and it establishes provisions for inter-state cooperation. It is anything but flawless and by no means lays down a comprehensive regime against genocide. But for 65 years, it has been the ‘premier document’ (Daniel Rothenberg) of the fight against genocide: it is the rock on which the international regime against genocide is built. The present book is an attempt to engage with this ‘premier document’. Our aim throughout has been to interrogate the Convention’s text, and to ascertain its meaning in line with the general rules of treaty interpretation. The result is an article-by-article commentary on the Convention’s provisions – the first, to our knowledge, in the English language since Nehemiah Robinson’s pioneering work published in 1960. Alongside entries analysing the respective treaty provisions, we have included a General Introduction (which situates the Convention in its broader normative context), a chapter on Treaty Reservations (as they raise problems of a cross-cutting nature) and a number of Annexes (setting out all five authentic languages and providing detail on treaty participation, treaty actions and national legislation on genocide). While most of the entries have been written by one of the three co-authors individually, we believe the work as a whole is a coherent attempt to engage with a treaty that deserves to be taken seriously 65 years after its adoption. In writing his book, we have incurred many debts, which we gladly acknowledge: James Devaney, Amber Maggio and Athene Richford have critically read parts of the manuscript and helped us improve it; Gloria Dulich and Melanie Fey have provided research assistance on national genocide laws; Daniel Sprick and Andrej Umansky have given advice on problems relating to the Chinese and Russian versions of the Convention. At Beck, Dr. Wilhelm Warth has encouraged the project from its inception and guided it towards its completion with patience and commitment. Finally, the newly-established Institute for International Peace and Security Law at the University of Cologne has provided us with an excellent research environment; we are grateful to its Director, Professor Claus Kreß, for his hospitality and support, and glad that he has generously accepted to contribute a foreword. Cologne/Glasgow, 1 October 2013 Christian J. Tams Lars Berster Bjo¨rn Schiffbauer V

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Foreword As a technical legal matter, Genocide was not among the crimes within the jurisdiction of the International Military Tribunal at Nuremberg whose judgment marks the breakthrough of the concept of individual criminal responsibility directly under international law. Also from a substantive perspective, the ‘denial of existence of entire human groups’ by the Nazis, which shocked the conscience of mankind, did not figure too prominently in the Nuremberg judgment – due to a heavy jurisdictional restraint and the political emphasis on the crime of aggressive warfare. The picture changed, however, in the immediate aftermath of Nuremberg. On 9 December 1948, and still under the impact of the horrors of the holocaust, the Convention on the Prevention and Punishment of the Crime of Genocide embraced Raphael Lemkin‘s idea to define genocide as a distinct crime under international law. In doing so, the Genocide Convention became the first international treaty which unambiguously recognised the very concept of a crime under international law. In that sense, the Genocide Convention constituted an important confirmation of the precedents set in Nuremberg and Tokyo. In at least two other important respects, the Genocide Convention went beyond the legacy of the two International Military Tribunals and foreshadowed the stormy legal development which began in the first half of the 1990s and culminated in the establishment of the International Criminal Court: first, the Convention extended the application of international criminal law to times of peace and to atrocities committed within a state, and second, the Convention constitutes the first attempt comprehensively to spell out the elements of a crime under international law. From the beginning, the Convention’s definition of the crime of genocide has received criticisms for being ‘exceedingly narrow’. But ever since, states have been treating their early agreement almost as a ‘sacred text’. Due to the more recent renaissance of international criminal law with its rapid evolution of a rich body of international and national case-law, the debate about the definition of what is often being referred to as the ‘crime of crimes’ has grown much richer and much more complex. Apart from setting out the definition of the crime of genocide, the Genocide Convention establishes a set of important state obligations in order to effectively repress and, even more importantly, prevent the commission of the crime. Less visibly, but perhaps most importantly, the Genocide Convention also implies the obligation for states not to themselves commit genocide. As one would expect it from a treaty adopted in 1948, it does not complement all these obligations by sophisticated enforcement mechanisms. But at least after the International Court of Justice’s 2007 judgment in the Bosnian Genocide case this should not mislead anybody to consider these obligations as lofty rhetoric. For all these reasons already, the Genocide Convention constitutes a legal document of crucial importance. But what is more, the Genocide Convention, through its ‘humanitarian and civilizing purpose’, as recognised by the International Court of Justice as early as in 1951, inspired the development of public international law more broadly, be it in the immediately adjacent field of internaVII

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Foreword tional human rights law or, as the more recent debate on the ‘Responsibility to Protect’ demonstrates, in the realm of the law of international peace and security. Professor Christian Tams, Dr. Lars Berster and Dr. Bjo¨rn Schiffbauer have formed a team of authors, which very usefully unites recognised expertise both in public international law and in (international) criminal law, in order to fully explore, through an article-by-article commentary, the contemporaneous significance of the Genocide Convention. The commentary offers a meticulous analysis of the content of each individual provision and, through a detailed General Introduction, it situates the Genocide Convention within its broader normative context. Throughout, the text is based on rigorous research and displays carefully balanced judgment. The three authors deserve to be commended for having significantly enhanced our understanding of the law against genocide which, so unfortunately, continues to be of burning importance. Claus Kreß Cologne, 1 October 2013

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List of Abbreviations and Acronyms AC ........................... ACHR ..................... add. ......................... Add. Prot. I ........... AFDI ....................... AJIL ......................... ArizonaJICL .......... ASILSILJ ................ ASR ......................... AucklULRev .......... AVR ........................ BerkILPub ............. BGH ........................ BUIntLJ .................. BVerfG ................... BYIL ........................ CalLRev .................. CanYbIL ................. CaseWResJIL ........ CityULR ................. ColumbiaLRev ...... CrimLPhil .............. Diss. Op.. ............... e.g. ........................... ECCC ...................... ECHR ..................... ECOSOC ................ ECtHR .................... ed. ............................ eds ........................... EHRR ..................... EJIL ......................... et al. ......................... et seq. ...................... fn. ............................ fns ............................ GA ........................... GC ........................... GenocideSP ........... GoJIL ...................... GPN ........................ GYIL ....................... HarvardILJ ............ HoL ......................... HousJIL .................. HRLR ...................... HRQ ....................... i. e. ........................... ibid. ......................... ICC .......................... ICCPR .................... ICJ ........................... ICLQ .......................

Appeals Chamber American Convention on Human Rights (1969) addendum Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. Annuaire français de droit international law American Journal of International Law Arizona Journal of International and Comparative Law Association of Student International Law Societies International Law Journal Articles on State Responsibility Auckland University Law Review Archiv des Vo¨lkerrechts Berkeley International Law Publicist Bundesgerichtshof (German federal supreme court) Boston University International Law Journal Bundesverfassungsgericht (German federal constitutional court) British Yearbook of International Law California Law Review Canadian Yearbook of International Law Case Western Reserve Journal of International Law City University of Hong Kong Law Review Columbia Law Review Criminal Law and Philosophy Dissenting Opinion exempli gratia; for example Extraordinary Chambers in the Courts of Cambodia European Convention on Human Rights (1950) Economic and Social Council European Court of Human Rights editor/edition editors European Human Rights Reports European Journal of International Law et alii/and others et sequentes footnote footnotes General Assembly Geneva Convention Genocide Studies and Prevention Goettingen Journal of International Law Genocide Prevention Network German Yearbook of International Law Harvard International Law Journal House of Lords Houston Journal of International Law Human Rights Law Review Human Rights Quarterly id est; that is ibidem International Criminal Court International Covenant on Civil and Political Rights (1966) International Court of Justice International and Comparative Law Quarterly

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Abbreviations ICTJ ........................ ICTR ....................... ICTY ....................... ILC .......................... ILR .......................... IMT ......................... IMTFE .................... IntCrimJustRev .... IntCrimLRev ......... IrishSLR ................. IRRC ....................... JCLC ....................... JIntCrimJust .......... JuS ........................... KritJ ........................ LeidenJIL ............... lit. ............................ LPICT ..................... MarylandJILT ....... MichJIL .................. MichJRaceL ........... mn. .......................... mns ......................... MPEPIL ................. MPYUNL ............... NILR ....................... NJW ........................ NPolS ...................... NStZ ........................ NYUJILP ................ NYULR .................. OhioNULRev ........ p. .............................. para. ........................ paras ....................... PCIJ ......................... PolYIL .................... PTC ......................... R2P .......................... RdC ......................... RdDI ....................... RDISDP ................. Res. .......................... RIDP ....................... RTDH ..................... SC ............................ SCSL ....................... SeattleULRev ......... Sep. Op. .................. StanLRev ................ STL .......................... TC ........................... TempIntCLJ .......... UN .......................... UN Doc. ................. UNTS ..................... v. .............................. VCDR ..................... VCLT ...................... VirginiaJIL ............. viz. ........................... vol. ...........................

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International Center for Transitional Justice International Criminal Tribunal for Rwanda International Criminal Tribunal for the Former Yugoslavia International Law Commission International Law Reports International Military Tribunal (Nuremberg) International Military Tribunal for the Far East (Tokyo) International Criminal Justice Review International Criminal Law Review Irish Student Law Review International Review of the Red Cross Journal of Criminal Law & Criminology Journal of International Criminal Justice Juristische Schulung Kritische Justiz Leiden Journal of International Law littera(e) Law and Practice of International Courts and Tribunals Maryland Jounal of International Law and Trade Michigan Journal of International Law Michigan Journal of Race and Law marginal number marginal numbers Max Planck Encyclopedia of Public International Law Max Planck Yearbook of United Nations Law Netherlands International Law Review Neue Juristische Wochenschrift New Political Science Neue Zeitschrift fu¨r Strafrecht New York University Journal of International Law and Politics New York University Law Review Ohio Northern University Law Review page paragraph paragraphs Permanent Court of International Justice Polish Yearbook of International Law Pre-Trial Chamber Responsibility to Protect Recueil des Cours (The Hague Academy of International Law) Rivista di diritto internazionale Revue de droit international, de sciences diplomatiques et politiques Resolution Revue internationale de droit pe´nal Revue trimestrielle de droits de l’homme Security Council Special Court for Sierra Leone Seattle University Law Review Separate Opinion Stanford Law Review Special Tribunal for Lebanon Trial Chamber Temple International and Comparative Law Journal United Nations UN Document (as to the UN’s Official Document System) United Nations Treaty Series versus Vienna Convention on Diplomatic Relations (1961) Vienna Convention on the Law of Treaties (1969) Virginia Journal of International Law videlicet (namely) volume

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Abbreviations WashUGSLRev ..... WashULQ ............. WisconsinILJ ........ YaleJIL .................... YaleLJ ..................... YbILC ..................... Zao¨RV .................... ZIS ........................... ZStW ......................

Washington University Global Studies Law Review Washington University Law Quarterly Wisconsin International Law Journal Yale Journal of International Law Yale Law Journal Yearbook of the International Law Commission Zeitschrift fu¨r ausla¨ndisches o¨ffentliches Recht und Vo¨lkerrecht Zeitschrift fu¨r Internationale Strafrechtsdogmatik Zeitschrift fu¨r die gesamte Strafrechtswissenschaft

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Table of Cases A. International Courts PCIJ (in chronological order) The Mavrommatis Palestine Concessions, Judgment of 30 August 1924, Series A – No 2; short title: Mavrommatis Palestine Concessions. Case concerning the Factory at Chorzo´w (claim for indemnity) (merits), Judgment of 13 September 1928, Series A – No 17; short title: Chorzo´w Factory. The Electricity Company of Sofia and Bulgaria (preliminary objection), Judgment of 4 April 1939, Series A/B – No 77; short title: Electricity Company of Sofia and Bulgaria. ICJ (in chronological order) Corfu Channel case (United Kingdom v Albania), Judgment of 25 March 1948, ICJ Reports 1949, 4; short title: Corfu Channel case. Reservations to the Convention on Genocide, Advisory Opinion of 28 May 1951, ICJ Reports 1951, 15; short title: Reservations. Ambatielos (Greece v. United Kingdom), Judgment of 1 July 1952, ICJ Reports 1952, 28; short title: Ambatielos. Anglo-Iranian Oil Co. Case (United Kingdom v. Iran), Preliminary Objection, Judgment of 22 July 1952, ICJ Reports 1952, 93; short title: Oil Co. case. Nottebohm (Liechtenstein v. Guatemala), Preliminary Objections, Judgment of 18 November 1953, ICJ Reports 1953, 111; short title: Nottebohm. Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom and United States of America), Judgment of 15 June 1954, ICJ Reports 1954, 19; short title: Monetary Gold. South West Africa cases, Second Phase (Ethiopia v. South Africa, Liberia v. South Africa), Judgment of 18 July 1966, ICJ Reports 1966, 6; short title: South West Africa. Barcelona Traction, Light and Power Company, Limited, Judgment of 5 February 1970, ICJ Reports 1970, 3; short title: Barcelona Traction. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, ICJ Reports 1971, 16; short title: Namibia. Trial of Pakistani Prisoners of War (Pakistan v. India), Order of 13 July 1973 (provisional measures), ICJ Reports 1973, 328; Order of 15 December 1973 (discontinuance), ICJ Reports 1973, 347; short title: Pakistani Prisoners of War. Nuclear Tests (Australia v. France), Judgment of 20 December 1974, ICJ Reports 1974, 253; short title: Nuclear Tests.

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Table of Cases United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment of 24 May 1980, ICJ Reports 1980, 3; short title: Tehran Hostages. Continental Shelf (Libyan Arab Jamahiriya/Malta), Application to Intervene, Judgment of 21 March 1984, ICJ Reports 1984, 3; short title: Continental Shelf. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment of 26 November 1984 (preliminary objections), ICJ Reports 1984, 492; Judgment of 27 June 1986 (merits), ICJ Reports 1986, 14; short title: Nicaragua. Certain Phosphate Lands in Nauru (Nauru v. Australia), Judgment of 26 June 1992; ICJ Reports (1992), 240; short title: Nauru. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia), Order of 8 April 1993 (provisional measures), ICJ Reports 1993, 3; Order of 13 September 1993 (further provisional measures), ICJ Reports 1993, 325; Judgment of 11 July 1996 (preliminary objections), ICJ Reports 1996, 595; Judgment of 26 February 2007 (merits) ICJ Reports 2007, 43; short title: Bosnian Genocide case. Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment of 3 February 1994, ICJ Reports 1994, 6; short title: Territorial Dispute. East Timor (Portugal v. Australia), Judgment of 30 June 1995, ICJ Reports 1995, 90; short title: East Timor. Legality of Use of Force (Serbia and Montenegro v. Portugal) (and nine other states), Order of 2 June 1999 (provisional measures), ICJ Reports 1999, 656; Judgment of 15 December 2004 (jurisdiction and admissibility), ICJ Reports 2004, 1160; short title: Legality of the Use of Force. Kasikili/Sedudu Island (Botswana/Namibia), Judgment of 13 December 1999, ICJ Reports 1999, 1045; short title: Kasikili/Sedudu Island. LaGrand (Germany v. United States of America), Judgment of 27 June 2001, ICJ Reports 2001, 466; short title: LaGrand. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002, ICJ Reports 2002, 3; short title: Arrest Warrant. Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina), Judgment of 3 February 2003, ICJ Reports 2003, 7; short title: Application for Revision. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004, 136; short title: Wall. Certain Property (Liechtenstein v. Germany), Judgment of 10 February 2005, ICJ Reports 2005, 6; short title: Certain Property. Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Judgment of 3 February 2006, ICJ Reports 2006, 6; short title: Armed Activities case.

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Table of Cases Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment of 13 December 2007 (preliminary objections), ICJ Reports 2007, 832; short title: Territorial and Maritime Dispute. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment of 18 February 2008, ICJ Reports 2008, 412; short title: Croatian Genocide case. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Judgment of 1 April 2011, ICJ Reports 2011, 70; short title: Georgia Russia case. Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment of 3 February 2012 (at www.icj-cij.org); short title: Jurisdictional Immunities. Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment of 20 July 2012 (at www.icj-cij.org); short title: Obligation to Prosecute or Extradite. ICC (in alphabetical order) Prosecutor v. Al Bashir, Case No.: 02/05-01/09, Pre-Trial Chamber I, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir of 4 March 2009; cited as: ICC Al Bashir, PTC, 4 March 2009. Prosecutor v. Al Bashir, Case No.: 02/05-01/09, Appeals Chamber, Judgment on the appeal of the Prosecutor against the “Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir” of 3 February 2010; cited as: ICC Al Bashir, AC, 3 February 2010. Prosecutor v. Al Bashir, Case No.: 02/05-01/09, Pre-Trial Chamber I, Second Decision on the Prosecution’s Application for a Warrant of Arrest of 12 July 2010; cited as: ICC Al Bashir, PTC, 12 July 2010. Prosecutor v. Al Bashir, Case No.: 02/05-01/09, Pre-Trial Chamber I, Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir of 12 December 2011; cited as: ICC Al Bashir (Malawi), PTC, 12 December 2011. Prosecutor v. Al Bashir, Case No.: 02/05-01/09, Pre-Trial Chamber I, Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Chad to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir of 13 December 2011; cited as: ICC Al Bashir (Chad), PTC, 13 December 2011. Prosecutor v. Bemba Gombo, Case No.: 01/05-01/08, Pre-Trial Chamber II, Decision on the Confirmation of Charges of 15 June 2009; cited as: ICC Bemba, PTC, 15 June 2009. Prosecutor v. Chui, Case No. ICC-01/04-02/12, Trial Chamber, Judgment pursuant to Article 74 of the Statute, Concurring Opinion of Judge Christine Van den Wyngaert of 18 December 2012; cited as: ICC Chui, Concurring Opinion of Judge Christine Van den Wyngaert, 18 December 2012. Prosecutor v. Lubanga Dyilo, Case No.: 01/04-01/06, Pre-Trial Chamber I, Decision on the Confirmation of Charges of 29 January 2007; cited as: ICC Lubanga, PTC, 29 January 2007. Prosecutor v. Katanga and Chui, Case No.: 01/05-01/08, Pre-Trial Chamber I, Decision on the the Confirmation of Charges of 30 September 2008; cited as: ICC Katanga and Chui, PTC, 30 September 2008. Prosecutor v. Lubanga Dyilo, Case No.: 01/04-01/06, Trial Chamber, Judgment of 14 March 2012; cited as: ICC Lubanga, TC, 14 March 2012.

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Table of Cases ICTY (in alphabetical order) Prosecutor v. Milan Babic´, Case No. IT-03-72-A, Appeals Chamber, Judgment on Sentencing Appeal of 18 July 2005; cited as: ICTY Babic´, AC, 18 July 2005. Prosecutor v. Blagojevic´ and Jokic´, Case No. IT-02-60-T, Trial Chamber, Judgment of 17 January 2005; cited as: ICTY Blagojevic´ and Jokic´, TC, 17 January 2005. Prosecutor v. Blagojevic´ and Jokic´, Case No. IT-02-60-A, Appeals Chamber, Judgment of 9 May 2007; cited as: ICTY Blagojevic´ and Jokic´, AC, 9 May 2007. Prosecutor v. Blasˇkic´, Case No. IT-95-14-A, Appeals Chamber, Judgment (on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997) of 29 October 1997; cited as: ICTY Blasˇkic´, AC, 29 October 1997. Prosecutor v. Blasˇkic´, Case No. IT-95-14-A, Appeals Chamber, Judgment of 29 July 2004; cited as: ICTY Blasˇkic´, AC, 29 July 2004. Prosecutor v. Brd-anin, Case No. IT-99-36-T, Trial Chamber, Decision on the Motion of Acquittal Pursuant to Rule 98bis of 28 November 2003; cited as: ICTY Brd-anin, TC, 28 November 2003. Prosecutor v. Brd-anin, Case No. IT-99-36-T, Appeals Chamber, Decision on Interlocutory Appeal of 19 March 2004; cited as: ICTY Brd-anin, AC, 19 March 2004. Prosecutor v. Brd-anin, Case No. IT-99-36-T, Trial Chamber, Judgment of 1 September 2004; cited as: ICTY Brd-anin, TC, 1 September 2004. Prosecutor v. Brd-anin, Case No. IT-99-36-A, Appeals Chamber, Judgment of 3 April 2007; cited as: ICTY Brd-anin, AC, 3 April 2007. Prosecutor v. Furundzˇija, Case No. IT-95-17/1, Trial Chamber, Judgment of 10 December 1998; cited as: ICTY Furundzˇija, TC, 10 December 1998. Prosecutor v. Galic´, Case No. IT-98-29-T, Trial Chamber, Judgment of 5 December 2003; cited as: ICTY Galic´, TC, 5 December 2003. Prosecutor v. Jelisic´, Case No. IT-95-10-T, Trial Chamber, Judgment of 14 December 1999; cited as: ICTY Jelisic´, TC, 14 December 1999. Prosecutor v. Jelisic´, Case No. IT-95-10-A, Appeals Chamber, Judgment of 5 July 2001; cited as: ICTY Jelisic´, AC, 5 July 2001. Prosecutor v. Karadzˇic´, Case No. IT-95-5-D, Trial Chamber, Decision (on the Bosnian Serb Leadership Deferral Proposal) of 16 May 1995; cited as: ICTY Karadzˇic´, TC, 16 May 1995. Prosecutor v. Karadzˇic´, Case No. IT-95-5/18-AR98bis.l, Appeals Chamber, Judgment of 11 July 2013; cited as: ICTY Karadzˇic´, AC, 11 July 2013. Prosecutor v. Karadzˇic´, Case No. IT-95-5/18-T, Trial Chamber, Transcript of 28 June 2012; cited as: ICTY Karadzˇic´, TC, 28 June 2012. Prosecutor v. Karadzˇic´ and Mladic´, Case No. IT-95-5-R61/IT-95-18-R61, Trial Chamber, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996; cited as: ICTY Karadzˇic´ and Mladic´, TC, 11 July 1996. ˇ erkez, Case No. IT-95-14/2-T, Trial Chamber, Judgment of 26 February Prosecutor v. Kordic´ and C 2002; ˇ erkez, TC, 26 February 2002. cited as: ICTY Kordic´ and C

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Table of Cases ˇ erkez, Case No. IT-95-14/2-A, Appeals Chamber, Judgment of 17 DeProsecutor v. Kordic´ and C cember 2004; ˇ erkez, AC, 17 December 2004. cited as: ICTY Kordic´ and C Prosecutor v. Krajisˇnik, Case No. IT-00-39-T, Trial Chamber, Judgment of 27 September 2006; cited as: ICTY Krajisˇnik, TC, 27 September 2006. Prosecutor v. Krajisˇnik, Case No. IT-00-39-A, Appeals Chamber, Judgment of 17 March 2009; cited as: ICTY Krajisˇnik, AC, 17 March 2009. Prosecutor v. Krnojelac, Case No. IT-97-25-A, Appeals Chamber, Judgment of 17 September 2003; cited as: ICTY Krnojelac, AC, 17 September 2003. Prosecutor v. Krstic´, Case No. IT-98-33-T, Trial Chamber, Judgment of 2 August 2001; cited as: ICTY Krstic´, TC, 2 August 2001. Prosecutor v. Krstic´, Case No. IT-98-33-A, Appeals Chamber, Judgment of 19 April 2004; cited as: ICTY Krstic´, AC, 19 April 2004. Prosecutor v. Kupresˇkic´ et al., Case No. IT-95-16-T, Trial Chamber, Judgment of 14 January 2000; cited as: ICTY Kupresˇkic´ et al., TC, 14 January 2000. Prosecutor v. Kvocˇka et al., Case No. IT-98-30/1-T, Trial Chamber, Judgment of 2 November 2001; cited as: ICTY Kvocˇka et al., TC, 2 November 2001. Prosecutor v. Kvocˇka et al., Case No. IT-98-30/1-A, Appeals Chamber, Judgment of 28 February 2005; cited as: ICTY Kvocˇka et al., AC, 28 February 2005. Prosecutor v. Limaj et al., Case No. IT-03-66-A, Appeals Chamber, Judgment of 30 November 2005; cited as: ICTY Limaj et al., AC, 30 November 2005. Prosecutor v. Milotinovic´, Case No. IT-03-70-T, Trial Chamber, Judgment of 26 February 2009; cited as: ICTY Milotinovic´, TC, 26 February 2009. Prosecutor v. Mrksˇic´ et al., Case No. IT-95-13/1, Trial Chamber, Judgment of 27 September 2007; cited as: ICTY Mrksˇic´ et al., TC, 27 September 2007. Prosecutor v. Mrksˇic´ et al., Case No. IT-95-13/1-A, Appeals Chamber, Judgment of 5 May 2009; cited as: ICTY Mrksˇic´ et al., AC, 5 May 2009. Prosecutor v. Mucic´ et al., Case No. IT-96-21-T, Trial Chamber, Judgment of 16 November 1998; cited as: ICTY Mucic´ et al., TC, 16 November 1998. Prosecutor v. Mucic´ et al., Case No. IT-96-21-A, Appeals Chamber, Judgment of 20 February 2001; cited as: ICTY Mucic´ et al., AC, 20 February 2001. Prosecutor v. Natelilic´, Case No. IT-98-34-T, Trial Chamber, Judgment of 31 March 2003; cited as: ICTY Natelilic´, TC, 31 March 2003. Prosecutor v. Oric´, Case No. IT-03-68-T, Trial Chamber, Judgment of 30 June 2006; cited as: ICTY Oric´, TC, 30 June 2006. Prosecutor v. Oric´, Case No. IT-03-68-A, Appeals Chamber, Judgment of 3 July 2008; cited as: ICTY Oric´, AC, 3 July 2008. Prosecutor v. Popovic´ et al., Case No. IT-05-88-T, Trial Chamber, Judgment of 10 June 2010; cited as: ICTY Popovic´ et al., TC, 10 June 2010. Prosecutor v. Blagoje Simic´ et al., Case No. IT-95-9-T, Trial Chamber, Judgment of 17 October 2003; cited as: ICTY Simic´ et al., TC, 17 October 2003. Prosecutor v. Sikirica et al., Case No. IT-95-8-T, Trial Chamber, Judgment on the Defence Motions to Acquit, 3 September 2001; cited as: ICTY Sikirica et al., TC, 3 September 2001. Prosecutor v. Stakic´, Case No. IT-97-24-T, Trial Chamber, Judgment of 31 July 2003; cited as: ICTY Stakic´, TC, 31 July 2003.

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Table of Cases Prosecutor v. Stakic´, Case No. IT-97-24-A, Appeals Chamber, Judgment of 22 March 2006; cited as: ICTY Stakic´, AC, 22 March 2006. Prosecutor v. Strugar, Case No. IT-01-42-T, Trial Chamber, Judgment of 31 January 2005; cited as: ICTY Strugar, TC, 31 January 2005. Prosecutor v. Dusˇko Tadic´, Case No. IT-94-1-T, Trial Chamber, Judgment of 7 May 1997; cited as: ICTY Tadic´, TC, 7 May 1997. Prosecutor v. Dusˇko Tadic´, Case No. IT-94-1-A, Appeals Chamber, Judgment of 15 July 1999; cited as: ICTY Tadic´, AC, 15 July 1999. Prosecutor v. Tolimir, Case No. IT-05-88/2-T, Trial Chamber, Judgment of 12 December 2012; cited as: ICTY Tolimir, TC, 12 December 2012. Prosecutor v. Vasiljevic´, Case No. IT-98-32-T, Trial Chamber, Judgment of 29 November 2002; cited as: ICTY Vasiljevic´, TC, 29 November 2002. Prosecutor v. Vasiljevic´, Case No. IT-98-32-A, Appeals Chamber, Judgment of 25 February 2004; cited as: ICTY Vasiljevic´, AC, 25 February 2004. ICTR (in alphabetical order) Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Chamber, Judgment of 2 September 1998; cited as: ICTR Akayesu, TC, 2 September 1998. Prosecutor v. Bagambiki, Case No. ICTR-97-36-T, Trial Chamber, Judgment of 25 February 2004; cited as: ICTR Bagambiki, TC, 25 February 2004. Prosecutor v. Bagosora et al., Case No. ICTR-96-7-T, Trial Chamber, Judgment of 18 December 2008; cited as: ICTR Bagosora et al., TC, 18 December 2008. Prosecutor v. Bagilishema, Case No. ICTR-95-1A-T, Trial Chamber, Judgment of 7 June 2001; cited as: ICTR Bagilishema, TC, 7 June 2001. Prosecutor v. Bikindi, Case No. ICTR-01-72-T, Trial Chamber, Judgment of 2 December 2008; cited as: ICTR Bikindi, TC, 2 December 2008. Prosecutor v. Gacumbitsi, Case No. ICTR-2001-64-T, Trial Chamber, Judgment of 17 June 2004; cited as: ICTR Gacumbitsi, TC, 17 June 2004. Prosecutor v. Kajelijeli, Case No. ICTR-98-44A-T, Trial Chamber, Judgment of 1 December 2003; cited as: ICTR Kajelijeli, TC, 1 December 2003. Prosecutor v. Kalimanzira, Case No. ICTR-05-88-T, Trial Chamber, Judgment of 22 June 2009; cited as: ICTR Kalimanzira, TC, 22 June 2009. Prosecutor v. Kambanda, Case No. ICTR-97-23-S, Trial Chamber, Judgment of 4 September 1998; cited as: ICTR Kambanda, TC, 4 September 1998. Prosecutor v. Kamuhanda, Case No. ICTR-99-54-T, Trial Chamber, Judgment of 22 January 2005; cited as: ICTR Kamuhanda, TC, 22 January 2005. Prosecutor v. Kayishema and Ruzindana., Case No. ICTR-95-1-T, Trial Chamber, Judgment of 21 May 1999; cited as: ICTR Kayishema and Ruzindana, TC, 21 May 1999. Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-A, Appeals Chamber, Judgment of 1 June 2001; cited as: ICTR Kayishema and Ruzindana, AC, 1 June 2001. Prosecutor v. Muhimana, Case No. ICTR-95-1B-T, Trial Chamber, Judgment of 28 April 2005; cited as: ICTR Muhimana, TC, 28 April 2005. Prosecutor v. Musema, Case No. ICTR-96-13-T, Trial Chamber, Judgment of 27 January 2000; cited as: ICTR Musema, TC, 27 January 2000.

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Table of Cases Prosecutor v. Nahimana et al., Case No. ICTR-99-52-T, Trial Chamber, Judgment of 3 December 2003; cited as: ICTR Nahimana et al., TC, 3 December 2003. Prosecutor v. Nahimana et al., Case No. ICTR-99-52-A, Appeals Chamber, Judgment of 28 November 2007; cited as: ICTR Nahimana et al., AC, 28 November 2007. Prosecutor v. Niyitegeka, Case No. ICTR-96-14-T, Trial Chamber, Judgment of 16 May 2003; cited as: ICTR Niyitegeka, TC, 16 May 2003. Prosecutor v. Ntagerura et al., Case No. ICTR-99-46-T, Trial Chamber, Judgment of 1 September 2009; cited as: ICTR Ntagerura, TC, 25 February 2004. Prosecutor v. Ntyitegeka, Case No. ICTR-96-14, Trial Chamber, Judgment of 16 May 2003; cited as: ICTR Ntyitegeka, TC, 16 May 2003. Prosecutor v. Nyiramasuhuko et al., Case No. ICTR-97-21-T, Trial Chamber, Judgment of 24 June 2011; cited as: ICTR Nyiramasuhuko et al., TC, 24 June 2011. Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, Trial Chamber, Judgment of 6 December 1999; cited as: ICTR Rutaganda, TC, 6 December 1999. Prosecutor v. Rutaganda, Case No. ICTR-96-3-A, Appeals Chamber, Judgment of 26 May 2003; cited as: ICTR Rutaganda, AC, 26 May 2003. Prosecutor v. Semanza, Case No. ICTR-97-20-T, Trial Chamber, Judgment of 15 May 2003; cited as: ICTR Semanza, TC, 15 May 2003. Prosecutor v. Simba, Case No. ICTR-01-76-T, Trial Chamber, Judgment of 13 December 2005; cited as: ICTR Semanza, TC, 13 December 2005. Prosecutor v. Seromba, Case No. ICTR-2001-66-T, Trial Chamber, Judgment of 13 September 2006; cited as: ICTR Seromba, TC, 13 September 2006. Prosecutor v. Serushago, Case No. ICTR-98-39-S, Trial Chamber, Sentence of 5 February 1999; cited as: ICTR Serushago, TC, 5 February 1999 Prosecutor v. Simba, Case No. ICTR-01-76-T, Trial Chamber, Judgment of 13 December 2005; cited as: ICTR Semanza, TC, 13 December 2005. IMT Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg 14 November 1945 – 1 October 1946, Vol. I–Vol. XLII Nuremberg 1947-1949; cited as: IMT, Trial of the Major War Criminals. Der Prozess gegen die Hauptkriegsverbrecher vor dem Internationalen Milita¨rgerichtshof, Nu¨rnberg 14. November 1945 – 1. Oktober 1946, Amtlicher Text – Deutsche Ausgabe, Vol. I–Vol. XLII Nuremberg, 1947-1949; cited as: IMT, Der Prozess gegen die Hauptkriegsverbrecher. IMTFE Judgment of 4 November 1948, in: B. V. A. Ro¨ling/C. F. Ru¨ter, The Tokyo Judgement, Vol. I, APAUniversity Press, Amsterdam, 1977; cited as: IMTFE, Ro¨ling/Ru¨ter. SCSL Decision on Immunity from Jurisdiction, Prosecutor v. Taylor, Case No. SCSL-2003-01-I, Appeals Chamber, 31 May 2004; cited as: SCSL Taylor (Immunity), 31 May 2004. SCSL Sesay et al., Case No. SCSL-04-15-T, Trial Chamber, Judgment of 2 March 2009; cited as: SCSL Sesay et al., TC, 2 March 2009.

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Table of Cases ECCC ECCC Thirith et al., Case No. 002/19-09-2007-ECCC/OCIJ (PTC38), Pre-Trial Chamber 38, Decision on the Appeals against the Co-Investigating Judges Order on Joint Criminal Enterprise (JCE) of 20 May 2010; cited as: ECCC Thirith et al., PTC, 20 May 2010. ECCC Nuon et al., Case No. 002/19-09-2007/ECCCC/TC, Trial Chamber, Decision on the Applicability of Joint Criminal Enterprise of 12 September 2011; cited as: ECCC Nuon et al., TC, 12 September 2011.

B. National Courts Belgium Cour de Cassation de Belgique, Ariel Sharon et al., file number P.02.1139.F/1, Judgment of 12 February 2003; cited as: Cour de Cassation de Belgique, Sharon et al., file number P.02.1139.F/1. Brussels Court of First Instance, Mukeshimana-Ngulinzira and others v Belgium and others, file numbers R.G. nº 04/4807/A and 07/15547/A, Judgment of 8 December 2010. Germany Oberlandesgericht Stuttgart, pending case against members of “Democratic Forces for the Liberation of Rwanda” (FDLR), file number 5–3 StE 6/10; cited as: Oberlandesgericht Stuttgart, “FDLR”, file number 5–3 StE 6/10. Guatemala Sala Tercera de la Corte de Apelaciones del Ramo Penal, Narcoactividad y Delitos contra el Ambiente, Judgment of 10 May 2013 against Efraı´n Rio´s Montt; cited as: Sala Tercera de la Corte de Apelaciones, Rı´os Montt, 10 May 2013. Israel District Court of Jerusalem, Criminal Case No. 40/61, Judgment of 12 December 1961 against Adolf Eichmann (reprinted in ILR 36 (1968)); cited as: District Court of Jerusalem, Eichmann, 12 Dec. 1961. Supreme Court of Israel, Judgment of 29 May 1962 against Adolf Eichmann (reprinted in ILR 36 (1968)); cited as: Supreme Court of Israel, Eichmann (appeal), 29 May 1962. Netherlands Netherlands Special Court of Cassation, Judgment of 6 December, 1948, Trial of Willy Zuehlke, in: Law Reports of Trials of War Criminals, selected and prepared by the United Nations War Crimes Commission, Vol. 14, London, 1949; cited as: “Zuehlke-Trial”, UNWCC-Series Vol. XIV. Poland Supreme National Tribunal of Poland, 11 March – 29 March 1947, Trial of Obersturmbannfu¨hrer Rudolf Franz Ferdinand Ho¨ß, in: Law Reports of Trials of War Criminals, selected and prepared by the United Nations War Crimes Commission, Vol. 7, London, 1948; cited as: “Ho¨ß-Trial”, UNWCC-Series Vol. VII. United Kingdom British Military Court, Lu¨neburg, 17 September – 17 November 1945, Trial of Josef Kramer and 44 others (“Belsen-Trial”), in: Law Reports of Trials of War Criminals, selected and prepared by the United Nations War Crimes Commission, Vol. 2, London, 1947; cited as: “Belsen-Trial”, UNWCC-Series Vol. II.

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Table of Cases Hose of Lords, Judgments – Regina v. Bartle and the Commissioner of Police for the Metropolis and others Ex Parte Pinochet (on appeal from a Divisional Court of the Queen’s Bench Division); Regina v. Evans and another and the Commissioner of Police for the Metropolis and others Ex Parte Pinochet (on appeal from a Divisional Court of the Queen’s Bench Division), 25 November 1998; cited as: HoL Pinochet I, 25 Nov. 1998. Hose of Lords, Judgments – Regina v. Bartle and the Commissioner of Police for the Metropolis and others Ex Parte Pinochet; Regina v. Evans and another and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet (on appeal from a Divisional Court of the Queen’s Bench Division), 24 March 1999; cited as: HoL Pinochet III, 24 March 1999. United States of America United States Military Commission, Trial of General Tomoyuki Yamashita, Manila, 8 October – 7 December 1945, in: Law Reports of Trials of War Criminals, selected and prepared by the United Nations War Crimes Commission, Vol. 4, London, 1948; cited as: Yamashita-Trial, United States Military Commission, UNWCC-Series Vol. IV. United States Supreme Court, Trial of General Tomoyuki Yamashita, Judgment of 4 February 1946, in: Law Reports of Trials of War Criminals, selected and prepared by the United Nations War Crimes Commission, Vol. 4, London, 1948; cited as: Yamashita-Trial, United States Supreme Court, UNWCC-Series Vol. IV. United States Military Tribunal, Nuremberg, 17 February – 4 December 1947, Trial of Josef Altsto¨tter and others (“Justice-Trial”), in: Law Reports of Trials of War Criminals, selected and prepared by the United Nations War Crimes Commission, Vol. 6, London, 1948; cited as: “Justice-Trial”, UNWCC-Series Vol. VI. United States Military Tribunal, Nuremberg, Nuremberg, 10 October 1947 – 10 March 1948, Trial of Ulrich Greifelt and others (“RuSHA-Trial”), in: Law Reports of Trials of War Criminals, selected and prepared by the United Nations War Crimes Commission, Vol. 13, London, 1949; cited as: “RuSHA-Trial”, UNWCC-Series Vol. XIII.

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Bibliography Alexandra Takai: Rape and Forced Pregnancy as Genocide before the Bangladesh Tribunal, TempIntCLJ 25 (2011), 393. Stefan Talmon: The Duty Not to ‘Recognize as Lawful’ a Situation Created by the Illegal Use of Force or Other Serious Breaches of a Jus Cogens Obligation: An Obligation Without Real Substance?, in: Christian Tomuschat/Jean-Marc Thouvenin (eds), The Fundamental Rules of the International Legal Order. Jus Cogens and Obligations Erga Omnes; Martinus Nijhoff, Leiden, 2005, 99; cited as: Talmon, in: Tomuschat/Thouvenin, Fundamental Rules of Int’l Legal Order. Stefan Talmon: The Responsibility of Outside Powers for Acts of Secessionist Entities, ICLQ 58 (2009), 493. Christian J. Tams: All’s Well That Ends Well: Comments on the ILC’s Articles on State Responsibility, Zao¨RV 62 (2002), 760. Christian J. Tams: Enforcing Obligations Erga Omnes in International Law, Cambridge University Press, 2005; cited as: Tams, Obligations Erga Omnes. Christian J. Tams: The Continued Relevance of Compromissory Clauses as a Source of ICJ Jurisdiction, in: Thomas Giegerich (ed.), A Wiser Century? Judicial Dispute Settlement, Disarmament and the Laws of War 100 Years after the Second Hague Peace Conference, Duncker & Humblot, Berlin, 2009, 461; cited as: Tams, in: Giegerich, A Wiser Century? Christian J. Tams: Prospects for Humanitarian Uses of Force, in: Antonio Cassese (ed.), Realizing Utopia: The Future of International Law, Oxford University Press, 2012, 359; cited as: Tams, Humanitarian Uses of Force, in: Realizing Utopia. HWA Thirlway: Advisory Opinions, in: Ru¨diger Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008-, online edition, [www.mpepil.com]; cited as: Thirlway, Advisory Opinions, in: MPEPIL. Firew Kebede Tiba: The Mengistu Genocide Trial in Ethiopia, JIntCrimJust 5 (2007), 513. Paul Tillich: Dynamics of Faith, Harper and Row, New York, 1957; cited as: Tillich, Dynamics of Faith. Kedar Nath Tiwari: Comparative Religion, Motilal Banarsidass, Delhi, 1997; cited as: Tiwari, Comparative Religion. Christian Tomuschat: Reparation in Cases of Genocide, JIntCrimJust 5 (2007), 905. Samuel Totten/William S. Parsons (eds): Century of Genocide: Critical Essays and Eyewitness Accounts (third edition), Routledge, 2008. Otto Triffterer: Dogmatische Untersuchungen zur Entwicklung des materiellen Vo¨lkerstrafrechts seit Nu¨rnberg, Albert, Freiburg i.Br., 1966; cited as: Triffterer, Dogmatische Untersuchungen. Otto Triffterer (ed.): Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article (second edition), C.H. Beck/Nomos/Hart, Munich, 2008; cited as: Author, in: Triffterer, ICC Statute (2nd ed.). Otto Triffterer: ‘Irrelevance of Official Capacity’ – Article 27 Rome Statute Undermined by Obligations under International Law or by agreement (Article 98)?, in: Isabelle Buffard/James Crawford/ Alain Pellet/Stephan Wittich (eds), International Law between Universalism and Fragmentation – Festschrift in Honour of Gerhard Hafner, Martinus Nijhoff Publishers, Leiden/Boston, 2008, Chapter 29, 571; cited as: Triffterer, in: Festschrift Hafner. Otto Triffterer/Christian Rosbaud/Hubert Hinterhofer (eds): StGB: Salzburger Kommentar zum Strafgesetzbuch, Loseblattausgabe (first edition), Lexis Nexis, ARD, ORAC, 2012; cited as: Author, in: Triffterer/Rosbaud/Hinterhofer, StGB.

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Bibliography Edward B. Tyler: Primitive Culture. Researches Into the Development of Mythology, Philosophy, Religion, Art, and Custom, Vol. I, John Murray, London, 1920; cited as: Tyler, Primitive Culture. UNESCO: The Race Concept. Results of an Inquiry, Paris, 1952; cited as: Unesco, The Race Concept. United Nations: Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, United Nations, New York, 1999; cited as Depositary Practice. United Nations: Handbook on Final Clauses of Multilateral Treaties, United Nations, New York, 2003; cited as: Final Clauses Handbook. United Nations: A More Secure World – Our Shared Responsibility. Report of the High-level Panel on Threats, Challenges and Change, UN Doc. A59/565, New York, United Nations, 2004; cited as: High Level Panel Report. United Nations Office of Legal Affairs: Summary of Practice of the UN Secretary General as Depositary of Multilateral Treaties, United Nations, New York, 1999; cited as: Summary of Practice. US Senate: Hearing Before the Committee on Foreign Relations, Washington, US Government Printing Office, 1986 Hans Vest: Humanita¨tsverbrechen – Herausforderung fu¨r das Individualstrafrecht?, ZStW 113 (2001), 457. Hans Vest: Genozid durch organisatorische Machtapparate. An der Grenze von individueller und kollektiver Verantwortlichkeit, Nomos, Baden-Baden, 2002; cited as: Vest, Genozid durch organisatorische Machtapparate. Hans Vest: A Structure-Based Concept of Genocidal Intent, JIntCrimJust 5 (2007), 781. Greg R. Vetter: Command Responsibility of Non-Military Superiors in the International Criminal Court (ICC), YaleJIL 25 (2000), 89. Mark E. Villiger: Customary International Law and Treaties, a Manual on the Theory and Practice of the Interrelation of Sources (second edition), Kluwer Law International, The Hague et al., 1997; cited as: Villiger, Customary Int’l Law and Treaties. Mark E. Villiger: Commentary on the 1969 Vienna Convention on the Law of Treaties, Martinus Nijhoff Publishers, Leiden/Boston, 2009; cited as: Villiger, Commentary on the VCLT. Silja Vo¨neky: Analogy in International Law, in: Ru¨diger Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008-, online edition, [www.mpepil. com]; cited as: Vo¨neky, Analogy, in: MPEPIL. Ana Filipa Vrdoljak: Genocide and Restitution: Ensuring Each Group’s Contribution to Humanity, EJIL 22 (2011), 17. Michael Waibel: Uniformity versus Specialisation – A Uniform Regime of Treaty Interpretation?, in: Christian J. Tams/Antonios Tzanakopoulos/Andreas Zimmermann (eds), Research Handbook on the Law of Treaties, Edward Elgar, 2014; cited as: Waibel, Uniformity vs. Specialisation, in: Tams/Tzanakopoulos/Zimmermann, Law of Treaties. (forthcoming, manuscript on file with the authors). Patricia M. Wald: Genocide and Crimes against Humanity, WashUGSLRev 6 (2007), 621. Hans Wehr: Arabisches Wo¨rterbuch fu¨r die Schriftsprache der Gegenwart (fifth edition), Harrassowitz Verlag, Wiesbaden, 1985 (unchanged reprint 1998); cited as: Wehr, Arabisches Wo¨rterbuch. Guo Wei/ . Xingfaxue zonglun/ . Shanghai, China: Faxue bianyishe/ edition), 1931; cited as: Guo Wei/ . Xingfaxue zonglun/ .

(sixth

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Bibliography Thomas Weigend: Bemerkungen zur Vorgesetztenverantwortlichkeit im Vo¨lkerstrafrecht, ZStW 116 (2004), 999. Thomas Weigend: Societas delinquere non potest? A German Perspective, JIntCrimJust 6 (2008), 927. Joseph Weiler/Antonio Cassese/Marina Spinedi (eds): International Crimes of State. A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility, de Gruyter, Berlin, 1989; cited as: Weiler/Cassese/Spinedi, International Crimes of a State. Thomas G. Weiss/Sam Daws (eds): The Oxford Handbook on the United Nations, Oxford University Press, 2007; cited as: Author, in: Oxford Handbook on the UN. Kerstin Weltz: Die Unterlassungshaftung im Vo¨lkerstrafrecht – Eine rechtsvergleichende Untersuchung des franzo¨sischen, US-amerikanischen und deutschen Rechts, edition iuscrim, Freiburg i.Br., 2004; cited as: Weltz, Die Unterlassungshaftung im Vo¨lkerstrafrecht. Chen Wenbin/ . Zhongguo xin xingfa zonglun/ yinshuguan/ , 1935; cited as: Chen Wenbin/ . Zhongguo xin xingfa zonglun/

, Shanghai, China: Shangwu .

Gerhard Werle: Principles of International Criminal Law (first edition), T.M.C. Asser Press, The Hague, 2005; cited as: Werle, Int’l Criminal Law (1st ed.). Gerhard Werle: Principles of International Criminal Law (second edition), T.M.C. Asser Press, The Hague, 2009; cited as: Werle, Int’l Criminal Law (2nd ed.). Gerhard Werle: Die deutsche Rechtsprechung zur Zersto¨rungsabsicht beim Vo¨lkermord und die Europa¨ische Menschenrechtskonvention, in: Michael Hettinger/Jan Zopfs/Thomas Hillenkamp/ Michael Ko¨hler/Ju¨rgen Rath/Franz Streng/Ju¨rgen Wolter (eds), Festschrift fu¨r Wilfried Ku¨per zum 70. Geburtstag, C.F. Mu¨ller Verlag, Heidelberg, 2007, 675; cited as: Werle, in: Festschrift Ku¨per. Gerhard Werle/Boris Burghardt: Establishing Degrees of Responsibility: Modes of Participation in Article 25 of the ICC Statute, in: Elies van Sliedregt/Sergey Vasiliev (eds), Pluralism in International Criminal Law, Oxford University Press, announced publication 2014, retrieved at: http://papers.ssrn. com/sol3/papers.cfm?abstract_id=2291596; cited as: Werle/Burghardt, in: van Sliedregt/Vasiliev, Pluralism in International Criminal Law. Benjamin Whitaker: Revised and updated report on the question of the prevention and punishment of the crime of genocide, ECOSOC Commission on Human Rights Sub-Commission on Prevention of Discrimination and Protection of Minorities Thirty-eighth session, Item 4 of the provisional agenda, UN Doc. E/CN.4/Sub.2/1985/6 (2 July 1985); cited as: Whitaker Report. Sara Williams: Hybrid and Internationalised Criminal Tribunals, Selected Jurisdictional Issues, Hart, Oxford/Portland, 2012; cited as: Williams, Hybrid and Internationalised Criminal Tribunals. Harmen van der Wilt: Genocide, Complicity in Genocide and International v. Domestic Jurisdiction – Reflections on the van Anraat Case, JIntCrimJust 4 (2006), 239. Harmen van der Wilt: Genocide v. War Crimes in the Van Anraat Appeal, JIntCrimJust 6 (2008), 557. ¨ ber Eigenart und Methode verfassungsgerichtlicher Rechtsprechung, in: VerfasJosef Wintrich: U sung und Verwaltung in Theorie und Wirklichkeit: Festschrift fu¨r Herrn Geheimrat Professor Dr. Wilhelm Laforet anla¨ßlich seines 75. Geburtstages, Isar-Verlag, Mu¨nchen, 1952, 227; cited as: Wintrich, in: Festschrift Laforet. Steffen Wirth: Immunity for Core Crimes? The ICJ’s Judgment in the Congo v. Belgium Case, EJIL 13 (2002), 877. Steffen Wirth: Co-perpetration in the Lubanga Trial Judgment, JIntCrimJust 10 (2012), 971.

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Bibliography Michael C. Wood: Participation of Former Yugoslav States in the United Nations and in Multilateral Treaties, MPYUNL 1 (1997), 254. Jan Wouters/Sten Verhoeven: The Prohibition of Genocide as a Norm of Ius Cogens and Its Implication for the Enforcement of the Law of Genocide, IntCrimLRev 5 (2005), 401. Jan Wouters/Sten Verhoeven: The Domestic Prosecution of Genocide, Leuven Centre for Global Governance Studies/Institute for International Law, Working Paper No. 55, December 2010; cited as: Wouters/Verhoeven, Domestic Prosecution of Genocide. Ingrid Wuerth: Pinochet’s Legacy Reassessed, AJIL 106 (2012), 731. Eric Wyler/Leo´n Arturo Castellanos-Jankiewicz: State Responsibility and International Crimes, in: William A. Schabas/Nadia Bernaz (eds), Routledge Handbook of International Criminal Law, London/New York, Routledge, 2012, 385; cited as: Wyler/Castellanos-Jankiewicz, State Responsibility, in: Schabas/Bernaz, Routledge Handbook. Alfred de Zayas: The Armenian Genocide International Law, GPN 8/2011 (http://www.genocidepre ventionnow.org/Portals/0/docs/ARMENIAN%20GENOCIDE%20AND%20INTERNATIONAL%20 LAW_web.pdf). Liesbeth Zegveld: Compensation for Victims of Genocide, in: Harmen van der Wilt et al. (eds), The Genocide Convention. The Legacy of 60 Years, Brill, Leiden, 2012, 97; cited as: Zegveld, Compensation, in: van der Wilt et al., Genocide Convention Legacy. Andreas Zimmermann: Die Zusta¨ndigkeit des Internationalen Gerichtshofes zur Entscheidung u¨ber Anspru¨che gegen am Verfahren nicht beteiligte Staaten, Zao¨RV 55 (1995), 105. Andreas Zimmermann: Staatennachfolge in vo¨lkerrechtliche Vertra¨ge, Springer, Berlin 2000; cited as: Zimmermann: Staatennachfolge. Andreas Zimmermann: State Succession in Treaties, in: Ru¨diger Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008-, online edition, [www.mpe pil.com]; cited as: Zimmermann, State Succession, in: MPEPIL. Andreas Zimmermann: The Obligation to Prevent Genocide: Towards a General Responsibility to Protect?, in: Ulrich Fastenrath/Rudolf Geiger/Daniel-Erasmus Kahn/Andreas Paulus/Sabine von Schorlemer/Christoph Vedder (eds), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma, Oxford University Press, 2011, 629; cited as: Zimmermann, in: Essays Simma. Andreas Zimmermann/Christian Tomuschat/Karin Oellers-Frahm/Christian J. Tams (eds): The Statute of the International Court of Justice – A Commentary (second edition), Oxford University Press, 2012; cited as: Author, in: Zimmermann/Tomuschat/Oellers-Frahm/Tams, Statute of the ICJ (2nd ed.).

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General Introduction Table of Contents: A. The Convention and the international fight against genocide. . . . . . . . . . . B. The way towards the Convention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. General Assembly Resolution 96(I). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. The Secretariat Draft. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. The Ad Hoc Committee Draft . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. The Sixth Committee debate (autumn 1948) . . . . . . . . . . . . . . . . . . . . . . . . . . . C. The Convention in brief, its status and age . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D. The Convention over time (1): textual continuity, adaptation, interpretation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Extra-conventional rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Treaty interpretation between continuity and change . . . . . . . . . . . . . . . . . 1. Canons of treaty interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Interpreting the Genocide Convention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E. The Convention over time (2): retroactivity? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Implications of retroactivity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. A presumption against retroactivity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Retroactivity and the Genocide Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . F. The Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . G. Concluding observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

mn. 1 7 8 11 13 18 21 24 27 28 29 30 37 39 40 42 44 50 56

A. The Convention and the international fight against genocide ‘There can be no more important issue, and no more binding obligation, than the 1 prevention of genocide.’ These were the opening words of Secretary-General Kofi Annan’s keynote address to the Stockholm International Forum on Preventing Genocide 2004.1 In the Stockholm Declaration adopted at the end of the Forum, 55 Governments pledged to do their ‘utmost’ to fight genocide and committed themselves to ‘cooperating in our search for effective measures against genocidal dangers’.2 The fight against such ‘genocidal dangers’ involves a wide range of actors: governments and the United Nations, but also other ‘global and regional organizations as well as … non-governmental organizations, labour organizations, the media and … business and academic communities.’3 It takes many forms – from media campaigns and educational initiatives raising awareness to international sanctions. And it relies on many strategies – education, empowerment, risk assessment, early warning, naming and shaming, punishment, etc. Law, too, is part of the fight against genocidal dangers. In fact it is everywhere. 2 Domestic statutes criminalising genocide are very visible and their importance is justly emphasised.4 But they are no more than the tip of the iceberg, complemented by numerous other laws ‘below the water line’, often hidden from view: charities supporting the fight against genocide benefit from domestic tax privileges; domestic 1

Annan, Stockholm Proposals, 1. Stockholm Declaration on Genocide Prevention, para. 7. 3 Stockholm Declaration on Genocide Prevention, para. 7. 4 For a survey of national provisions see Annex 5. 2

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rules designate remembrance days in memory of genocide victims; and many domestic legal systems envisage penalties for holocaust and genocide denial and hate propaganda. As with many worthwhile causes, law is an essential tool, relied upon to make measures against genocidal dangers effective. Alongside domestic law, there is international law, sometimes complementing, sometimes shaping it. In the global fight against genocide, international law plays a vital role. In the Stockholm Declaration, Governments professed to be ‘conscious of [their] obligations and responsibilities under international law’.5 International legal ‘obligations and responsibilities’ in certain ways restrain the fight against genocidal dangers (e. g. by limiting the options of resorting to force unilaterally6), but more importantly, they mandate it. The fight against genocide is a legal duty. 3 Like its domestic counterpart, the international legal regime against genocide comprises a heterogeneous set of rules, drawing on three areas in particular: – International security law provides one perspective on genocidal dangers: as has been observed, ‘[g]enocide, whether imminent or ongoing, is practically always, if not by definition, a threat to the peace’.7 Genocide prevention is a key strand of international debates about the global ‘Responsibility to Protect’; and if the Security Council so decides, acts and threats of genocide can be addressed through UN collective sanctions.8 – International human rights law provides another angle: it has long been recognised that genocide ‘involv[es] 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’.9 The fight against genocide is a ‘fight against the gravest violation of human rights it is possible to commit’.10 Fighting genocide implicates human rights law and institutions who can play an important role. – Finally, and perhaps most obviously, the fight against genocide is at the heart of international criminal law. Whilst war-time atrocities were ‘crimes without a

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Stockholm Declaration on Genocide Prevention, Preamble. See Article 2 para. 4 of the UN Charter, and Article I, mns 95–6. 7 Annan, Stockholm Proposals, 1. See also May, Genocide, describing genocide as ‘a security issue’ (at 9). In 2004, the UN High Level Panel on Threats, Challenges and Change had stated: ‘Under the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), states have agreed 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 punish. Since then it has been understood that genocide anywhere is a threat to the security of all and should never be tolerated. The principle of non-intervention in internal affairs cannot be used to protect genocidal acts or other atrocities, such as large-scale violations of international humanitarian law or large-scale ethnic cleansing, which can properly be considered a threat to international security and as such provoke action by the Security Council’ (High Level Panel Report, para. 200). 8 In para. 139 of its the World Summit Outcome Document adopted in 2005, the UN General Assembly noted: ‘The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.’ For more on this see infra, mn. 28, and Article VIII, mns 52–55. 9 ICJ, Reservations opinion, ICJ Reports 1951, 15, 23. 10 Whitaker Report, para. 14. 6

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name’,11 genocide has many: it is the ‘crime of crimes’,12 the ‘ultimate crime’,13 the ‘greatest crime of all’.14 These attempts to describe what shocks the conscience of mankind may be inadequate;15 but they signal that acts of genocide need to be met with the law’s most robust response, criminal sanctions. And at least for the last two decades, they have, gradually, as international criminal tribunals have charged and condemned perpetrators.16 The fight against genocidal dangers is part of all this; it is integrated into 4 international efforts to preserve international security, to protect human rights and to end impunity for grave crimes. And yet it is also a particular, autonomous goal. Genocide is not just an international crime, it is the international crime; to fight it is not an obligation, but (as there can be ‘no more binding’17) the obligation. True, this ‘particularist’ understanding is being questioned, perhaps increasingly. Does the particular focus on genocide not, at least implicitly, relativise other crimes and belittle their victims?18 Payam Akhavan’s recent study queries whether genocide is indeed the ‘ultimate crime’.19 David Scheffer suggests we should view genocide as one among various ‘atrocity crimes’.20 These questions are highly relevant as the international community contemplates 5 effective strategies against genocidal dangers. But they cannot unmake the creation, over the past seven decades, of genocide-specific institutions and rules. Faced with crises, the international community sets up commissions to study not only whether atrocities have been committed, but more specifically ‘whether or not acts of genocide have occurred’.21 The UN’s principal judicial organ, the International Court of Justice, decides disputes about genocide – and carefully notes that 11 See Winston Churchill’s remarks in ‘Prime Minister Winston Churchill’s Broadcast To The World About The Meeting With President Roosevelt’, 24 August 1941, available at http:// www.ibiblio.org/pha/timeline/410824awp.html, speaking of mass killings following the German invasion of the Soviet Union: ‘Since the Mongol invasions of Europe in the Sixteenth Century, there has never been methodical, merciless butchery on such a scale, or approaching such a scale. And this is but the beginning. Famine and pestilence have yet to follow in the bloody ruts of Hitler’s tanks. We are in the presence of a crime without a name’ (emphasis added). 12 ICTR Kambanda, TC, 4 September 1998, para. 16; ICTR Serushago, TC, 5 February 1999, para. 15. 13 Whitaker Report, para. 14. 14 French prosecutor Champetier de Ribes, in: IMT, Trial of the Major War Criminals, vol. 19, 562. 15 See the Appeals judgment in the Eichmann trial, in which the Israeli Supreme Court recognised its inability to capture in words ‘the story of the Holocaust of the European Jewry’ (‘No human pen, no human tongue can ever succeed in describing the barest outline of the suffering of the millions who were killed’): Eichmann (Supreme Court), ILR 36 (1968) 277, 322. The point is explored in Akhavan, Reducing Genocide to Law, 179–82. 16 For the jurisdictional bases see e. g. Article 4 of the ICTY Statute, Article 2 of the ICTR Statute, Article 6 of the Rome Statute. 17 See Annan, Stockholm Proposals, 1. 18 Debates about the correct qualification of atrocities committed in Darfur, in Bosnia, or against Armenians illustrate this; and there is an abundant literature. For pointed comment see Straus, Foreign Affairs 84 (2005), 123. Cassese warns that because of the particular legal regime, genocide might become a ‘magic word’ that need only be uttered ‘in an official document relating to a specific country, for international reaction to be triggered’ (in: Gaeta, Genocide Convention, 534). 19 Akhavan, Reducing Genocide to Law. 20 Scheffer, GenocideSP 1 (2006), 229; taken up in Scheffer, Missing Souls, chapter XIV. 21 See para. 12 of SC Res. 1564 (encouraging the establishment of a fact-finding mission on Darfur). The report of that mission is at http://www.un.org/news/dh/sudan/com_inq_darfur.pdf. Having concluded that ‘the Government of the Sudan has not pursued a policy of genocide’, the

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jurisdictional strictures preclude it from pronouncing on other crimes.22 The UN Secretary-General appoints a special Adviser on the Prevention of Genocide23 – who seeks to explore synergies in cooperating with his counterpart, the Special Advisor on the Responsibility to Protect,24 while maintaining the autonomy of his mandate.25 For ‘measures against genocide’ to be ‘effective’,26 the international community needs to make use of international security law, human rights law, and international criminal law. But the particularity of genocide, addressed by genocide-specific rules, remains a normative reality. 6 The Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 is the most visible sign of this normative reality. In its Preamble, the treaty parties recognise ‘that at all periods of history genocide has inflicted great losses on humanity’ and confirm that ‘genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world’. Perhaps most importantly, they pledge to cooperate to ‘liberate mankind from such an odious scourge’.27 The Convention is anything but flawless. It illustrates the challenges and ‘imperfections of codification’28 and has been called ‘conceptually confused’.29 And yet, for 65 years, it has formed the core of the international legal regime against genocide. It is one of the major international conventions of our time,30 widely ratified and generally held to reflect, in its substantive aspects, general international law. It illustrates the potential for lawmaking treaties to solidify, and set in stone, international commitments,31 and

Commission felt compelled to emphasise that this ‘should not be taken in any way as detracting from the gravity of the crimes perpetrated in that region’ (at 4). 22 See ICJ, Bosnian Genocide case, ICJ Reports 2007, 43, para. 147, where the Court expressly noted it had ‘no power to rule on alleged breaches of other obligations, not amounting to genocide, particularly those protecting human rights in armed conflict; … even if the alleged breaches are of obligations under peremptory norms, or of obligations which protect essential humanitarian values, and which may be owed erga omnes.’ For more detail see Article I, mn. 54; Article IX, mn. 44. 23 See UN Doc. S/2004/867 for the initial appointment. 24 Established by the Secretary-General in 2007, see UN Doc. S/2007/721. 25 The website of the Office of the Special Adviser on the Prevention of Genocide describes the relationship in the following terms: ‘The Special Adviser on the Prevention of Genocide acts as a catalyst to raise awareness of the causes and dynamics of genocide, to alert relevant actors where there is a risk of genocide, and to advocate and mobilize for appropriate action. The Special Adviser on the Responsibility to Protect leads the conceptual, political, institutional and operational development of the Responsibility to Protect. The mandates of the two Special Advisers are distinct but complementary’ (http://www.un.org/en/preventgenocide/adviser/). Questions of overlap and ‘value-added’ had been explored in the ‘Report on the Work of the Office of the Special Adviser of the Secretary-General on the Prevention of Genocide’ of 7 November 2005 (available at http:// www.un.org/ar/preventgenocide/adviser/pdf/Payan%20Akhavan,%20Review%20of%20OSAPG,%20 Nov%202005.pdf). 26 See Stockholm Declaration on Genocide Prevention, para. 7. 27 See infra, mns 50–5, for comment. 28 Ratner/Abrams/Bischoff, Accountability, 27. 29 Lippmann, ArizonaJICL 15 (1998), 505. 30 See e. g. the remark by ILC Special Rapporteur Alain Pellet, who observed that ‘most authors … and the ICJ … viewed the Convention as the ‘quintessential normative treaty’’ (ILC Report, YbILC 1997, vol. II/2, para. 76). 31 See Gowlland Debbas, in: Tams/Sloan, Development of Int’l Law by the ICJ, 28: ‘Treaties are par excellence the legal act or transaction by which social change and hence social claims cross the normative threshold’.

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simply through its existence over 65 years has ‘lent stability’32 to the international legal regime against genocide. As is clear from the preceding considerations, this regime consists of more than the Convention. But the Convention remains at its heart; it is the rock upon which the international regime against genocide is built. In its Resolution 53/43, adopted fifty years after the adoption of the Convention, the UN General Assembly was right to affirm, in the first operative paragraph, the Convention’s ‘significance … as an effective international instrument for the prevention and punishment of the crime of genocide’.33 65 years after its adoption, this ‘significant instrument’ needs to be taken seriously as a treaty in its own right, not merely as part of a broader international regime. This is the aim of the present book.

B. The way towards the Convention The Convention was adopted on 9 December 1948 – one day before the 7 Universal Declaration of Human Rights34 – and annexed to UN General Assembly resolution 260 A (III).35 Its adoption reflected the ‘emancipation’36 of genocide as a special crime, distinct from other atrocities. This ‘emancipation’ was the result of a series of factors, most obviously the horrendous crimes committed by the Nazis against Jews and other groups. The Holocaust had very clearly brought out the ultimate evil of genocide: as was to be noted with the benefit of hindsight, ‘the crimes prosecuted by the Nuremberg Tribunal, namely the holocaust of the Jews or the ‘Final Solution’, were very much constitutive of genocide’.37 I. Background The horrors of the holocaust certainly were crucial in the emergence of the term 8 ‘genocide’, which Raphael Lemkin, having fled his native Poland after the Nazi occupation, coined in 1944 in his book Axis Rule in Occupied Europe. Drawing on his earlier attempts to devise a distinct crime of ‘acts of barbary’,38 which should 32

Ratner/Abrams/Bischoff, Accountability, 27. GA Res. 53/43, para. 1. Identical language can be found in Resolutions 7/25 and 22/22 adopted by the UN Human Rights Council. 34 GA Res. 216 A (III), 10 December 1948. This reflects the close link between the fight against genocide and human rights law: see supra, mn. 3. 35 Comprehensive accounts of the drafting process can be found in Lippmann, BUIntLJ 3 (1984), 1; Drost, Genocide, 1–73; Schabas, Genocide in Int’l Law (2nd ed.), 59–116. Robinson’s account (Genocide Convention, 17–28) is matter-of-factly, but reliable. Cooper traces Lemkin’s influence in detail (Raphael Lemkin, 76–110 and 143–72). 36 See Kreß, IntCrimLRev 6 (2006), 466. 37 ICTR Kambanda, TC, 4 September 1998, para. 14. 38 Lemkin, Explications additionelles (Report presented at the 5th International Conference for the Unification of Penal Law in Madrid in 1933), contained the following proposals: ‘Art. 1) Quiconque, par haine a` l’egard d’une collectivite´ de race, de confession ou sociale, ou bien en vue de l’extermination de celle-ci, entreprend une action punissable contre la vie, l’intgrite´ corporelle, la liberte´, La dignite´ ou l’existence e´conomique d’une personne appartenant a` une telle collectivite´, est passible, pour de´lit de barbarie d’une peine de …, à moins que son action ne soit prévue dans une disposition plus sévère de Code respectif. L’auteur sera passible de même peine, si son action est dirigée contre une personne ayant déclaré sa solidarité avec une collectivité pareille ou bien ayant intervenu en faveur de celle-ci. Art. 2) Quiconque, soit par haine contre une collectivite´ de race, de confession ou sociale, soit en vue de l’extermination de colle-ci, de´truit ses oeuvres culturelles ou artistiques, est passible, pour 33

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attract universal prosecution, Lemkin chose to describe as ‘genocide’ – composed of genos (gr. gLnoB – race, kin, tribe) and caedere/occidere (lat. to kill, to fall) – any coordinated attempt to destroy ‘a nation or an ethnic group’39: ‘a co-ordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objective of such a plan would be disintegration of the political and social institutions of culture, language, national feelings, religion, and the economic existence of national groups and the destruction of the personal security, liberty, health, dignity and even the lives of the individuals belonging to such groups. Genocide is directed against individuals, not in their individual capacity, but as members of the national group.’

Formulating ‘recommendations for the future’, Lemkin proposed to recognise the specific evil of genocide in a revised version of the Hague Regulations of 1907 (to cover genocide committed during war time40) and in an international treaty providing for the criminalisation of genocide (covering action during peacetime).41 Four years later, such a treaty had been indeed adopted. The ‘emancipation’42 of genocide as a separate legal category was an astonishingly quick process. As William Schabas notes, ‘[r]arely has a neologism had such rapid success.’43 9 Two post-war factors had a decisive influence on the development of an international convention outlawing genocide. The first was the decision of the Allied powers to prosecute axis leaders before international tribunals at Nuremberg and Tokyo. Where the Kaiser and Turkish leaders had escaped punishment after World War I, German and Japanese leaders would have to face trial, so that ‘by punishing individuals who commit [international] crimes … the provisions of international law [could] be enforced.’44 The breakthrough for international criminal justice was also, in that sense, a breakthrough for the concept of individual criminal responsibility, on which the Genocide Convention would be based – and which it, in turn, would consolidate. 10 The specific focus of the Nuremberg (and Tokyo) trials on war-time atrocities was the second factor facilitating the recognition of genocide as a separate crime under de´lit de vandalisme, d’une peine de …, à moins que son action ne soit prévue dans une disposition plus sévère du Code respectif. … Art. 6) L’instigateur et le complice seront punis comme l’auteur meˆme. Art. 7) Les infractions rentrant dans l’e´numeration des Art. 1–6 seront poursuivies et punies inde´pendamment du lieu ou` l’infraction a e´te´ commise, et de la nationalite´ de l’auteur, conforme´ment a` la loi en vigueur dans le pays des poursuites.’ For a condensed version of these proposals see Lemkin, Internationales Anwaltsblatt 19 (1933), 117. 39 Lemkin, Axis Rule, 79. On p. 93, the reference is to ‘national, religious, or racial groups’. Lemkin quickly developed his argument and presented it in different languages: see Lemkin, AJIL 41 (1947), 145; Lemkin, Free World 9 (1945), 39; Lemkin, RDISDP 24 (1946), 213. 40 Lemkin, Axis Rule, 93: ‘the definition of genocide in the Hague Regulations … should consist of two essential parts, in the first should be included every action infringing upon the life, liberty, health, corporal integrity, economic existence, and the honor of the inhabitants when committed because they belong to a national, religious, or racial group; and in the second, every policy aiming at the destruction or the aggrandizement of one of such groups to the prejudice or detriment of another.’ 41 The treaty was to require state parties to criminalise genocide at domestic level and make it subject to universal jurisdiction: see Lemkin, Axis Rule, 93–4. 42 Kreß, IntCrimLRev 6 (2006), 466. 43 Schabas, Genocide in Int’l Law (2nd ed.), 14; and further Shany, in: Gaeta, Genocide Convention, 3 (‘remarkably short time’). 44 See IMT, Trial of the Major War Criminals, vol. 1, 227.

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international law.45 While the holocaust was to define our understanding of ‘genocide’, it was not as such prosecuted in Nuremberg. The term ‘genocide’ featured in pleadings46 as well as in the indictment, which charged the defendants with ‘deliberate and systematic genocide, viz., the extermination of racial and national groups, against the civilian populations of certain occupied territories in order to destroy particular races and classes of people and national, racial, or religious groups, particularly Jews, Poles, and Gypsies and others.’47

Yet under the jurisdictional regime of the Nuremberg tribunal, genocide was not a separate prosecutable crime; it could only be raised as part of broader notions, notably crimes against humanity. More importantly, during the allied preparations for the postwar trials, these crimes had been defined restrictively, as requiring a ‘nexus’ with international armed conflict.48 All this meant that ‘peacetime genocide’ could not be addressed adequately on the basis of the Nuremberg (and Tokyo) regime – and that it would have to be approached separately.49 As observed by one commentator: ‘It was Nuremberg’s failure to recognise the international criminality of atrocities committed in peacetime that prompted the first initiatives at codifying the crime of genocide. Had Nuremburg recognised the reach of international criminal law into peacetime atrocities, we might never therefore have seen a Genocide Convention.’50

II. General Assembly Resolution 96(I) One month after the Nuremberg judgment, ‘the first initiatives at codifying the 11 crime of genocide’ were well underway. In the opening lines of his study, Nehemiah Robinson notes: ‘Action on Genocide in the United Nations began with the request of the delegation of Cuba, India, and Panama (November 2, 1946) to the Secretary General to include in the agenda of the General Assembly an item on the prevention and punishment of Genocide.’51 45

Kreß speaks of a ‘decisive restriction [in] that there had to be a connection with a war of aggression or a war crime’ and notes that ‘international criminal law … of the first generation [comprising Nuremberg and Tokyo] was … inextricably linked to the existence of a war’ (Kreß, International Criminal Law, in: MPEPIL, para. 23). 46 See e. g. the following statement by Champetier de Ribes (IMT, Trial of the Major War Criminals, vol. 19, 562): ‘[A]ll of them have in one way or another participated in the greatest crime of all, genocide, the extermination of the races or people at whose expense they intended to conquer the living space they held necessary for the so-called Germanic race.’ For further references see ibid. 531 (describing ‘a crime so monstrous, so undreamt of in history throughout the Christian era up to the birth of Hitlerism, that the term ‘genocide’ has had to be coined to define it’), as well as IMT, Trial of the Major War Criminals, vol. 17, 61 (Shawcross to von Neurath: ‘we are charging you and your fellow defendants, among many other things, with genocide, which we say is the extermination of racial and national groups, or, as it has been put in the well-known book of Professor Lemkin’). 47 IMT, Trial of the Major War Criminals, vol. 2, 60. 48 See notably Article 6 lit. (c) of the London Agreement, 82 UNTS 280, defining crimes against humanity as ‘murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated’ (emphasis added). 49 As King recounts, Lemkin was very concerned that the Nuremberg tribunal ‘did not go far enough in dealing with genocidal atrocities’ (King, CaseWResJIL 40 (2008), 13). Cooper describes Lemkin as ‘temporarily stunned’ (Raphael Lemkin, 78). 50 Schabas, in: Safferling/Conze, The Genocide Convention Sixty Years after its Adoption, 21. 51 Robinson, Genocide Convention, 17.

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Within six weeks of that request – skilfully lobbied for by Lemkin52 – the General Assembly had not only passed GA Res. 96(I),53 which formulated the fundamentals of the future regime against genocide, but had also broadly agreed that this resolution should be complemented by a binding convention.54 Emancipation was well under way. 12 GA Res. 96(I) was not binding, but marked a major step towards the recognition of genocide as a special crime. In words that would frequently be repeated or adapted, the Assembly described genocide as ‘a denial of the right of existence of entire human groups’ which ‘shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations’.55 The Assembly furthermore ‘[a]ffirm[ed] that genocide is a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices – whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds – are punishable’ and it encouraged states to pass national legislation ‘for the prevention and punishment of this crime’.56 In debates preceding the adoption, it was also agreed that the UN’s ‘Economic and Social Council [should] undertake the necessary studies, with a view to drawing up a draft convention on the crime of genocide to be submitted to the next regular session of the General Assembly’.57 Thus began the actual drafting process.

III. The Secretariat Draft 13 ECOSOC considered the matter at its fourth session in the spring of 1947. As ‘[a]t this stage, not all United Nations procedures, rites and rules were fixed’,58 there was considerable uncertainty about competences, and about the best way to go about codification. ECOSOC’s social committee (to which the matter had been assigned) suggested that the matter be referred back to the Secretary-General, who was to ‘undertake, with the assistance of experts in the field of international and criminal law, the necessary studies with a view to drawing up a draft convention in accordance with the resolution of the General Assembly’.59

This the Secretary-General did, and in debates between members of the Secretariat, the Human Rights Division and three invited experts (Donnedieu de Vabres, Pella and Lemkin), the first complete draft of the Convention – the ‘Secretariat Draft’60 comprising 24 provisions – was produced.61

52

For many details see Cooper, Raphael Lemkin, 76–87. The Resolution is reproduced in Annex 2. 54 Lippmann, BUIntLJ 3 (1984), 6–7. 55 GA Res. 96(I), preamble. 56 GA Res. 96(I), para. 1. 57 GA Res. 96(I), para. 4. 58 Du ¨ lffer, in: Safferling/Conze, The Genocide Convention Sixty Years after its Adoption, 58. 59 ECOSOC Res. 47(IV), UN Doc. E/437, 33. 60 Contained, with explanatory commentary, in UN Doc. E/447. The text of the draft (without commentary) is reproduced in Annex 2. 61 The dedicated chapters that follow provide much detail about the drafting of individual provisions. The treatment here is restricted to highlighting broad contours of the negotiation process. 53

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The Secretariat Draft laid down a ‘maximum programme’62 and quite often offered 14 alternative options. It foreshadowed many of the provisions of the future Convention, for example by defining the notion of genocide and listing criminal acts (draft articles I and II); by laying down a duty to enact national legislation (draft article VI); by envisaging the prosecution and extradition of perpetrators (draft article VII, VIII) and a role for the International Court of Justice as a dispute settlement organ (draft article XIV); and by providing rules on the operative life of the treaty (such as ratification, revision, depositary functions, etc.).63 In some respects, the Secretariat Draft proposed rather bold provisions. Draft article VII was to impose upon parties a duty to ‘punish any offender under this Convention within any territory under their jurisdiction, irrespective of the nationality of the offender or of the place where the offence has been committed’;64 while draft article articles IX and X envisaged an international criminal court competent to deal with genocide.65 Other provisions required states to support UN action against genocide and recognised a right of genocide survivors to receive reparation (draft articles XII and XIII).66 Perhaps most importantly, in discussions preceding the completion of the 15 Secretariat Draft, some of the ‘big debates’ regarding the concept of genocide became apparent: could genocide be committed against political groups? (Donnedieu de Vabres thought so, and while Lemkin was cautious, the Draft mentioned political groups among the protected groups.67) Could there be ‘cultural genocide’, for example if the cultural characteristics of a group – its language, its historical settings – were suppressed or destroyed? (Lemkin accepted this, while Donnedieu de Vabres and Pella were cautious; but the Secretariat Draft mentioned cultural genocide alongside physical and biological genocide.68) And how far ‘upstream’ should the Convention go in prohibiting conduct preceding the actual commission of genocide? (According to the Secretariat Draft, certain forms of propaganda should be criminalised as should be other forms of preparatory action.69) The questions thus raised remained on the drafters’ agenda until the adoption of 16 the Convention. In the meantime, however, the drafting process was slowed down as governments took time to comment on the Secretariat Draft and as the Human Rights Commission, which ECOSOC had intended to become involved in the drafting, was not in session.70 In the Committee on the Progressive Development of International Law and its Codification (a precursor to the ILC), the Convention project for the first time was met with serious criticism when France challenged the specificity of ‘genocide’, which it wanted to address as part of the broader notion of crimes against humanity, while the United Kingdom, which had grown sceptical of

62

See France’s comment in UN Doc. A/401/Add.3, 1. See Drost, Genocide, 8–22, for a succinct exposition. 64 The explanatory commentary speaks of the ‘principle of the universality of punishment’: UN Doc. E/447, 38. 65 UN Doc. E/447, 42–3. Two Annexes to the Secretariat Draft contained draft statutes for the establishment of international criminal courts. 66 Drost, Genocide, 16, rightly considers this to be a ‘far-reaching’ proposal. 67 See UN Doc. E/447, 21–2. 68 See UN Doc. E/447, 26–8. 69 See UN Doc. E/447, 30–1. 70 Robinson, Genocide Convention, 20–1. 63

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the project, warned against ‘rushing’ into a codification.71 However, as other states were keen to proceed apace, the Committee took no stand on the Secretariat Draft. 17 While government comments were still being received, the General Assembly returned to the question of genocide during its second session in the autumn of 1947. It was here that the United Kingdom and other states voiced serious misgivings about the Convention.72 Pursuant to a draft resolution proposed to the Sixth Committee, rather than taking action, the General Assembly was to invite ECOSOC to study the feasibility of a Convention (a matter already determined by GA Res. 96(I)) and to await further government comments. These attempts to delay or derail the drafting process however proved unsuccessful.73 After amendments, GA Res. 180(II) specifically ‘[r]equest[ed] the Economic and Social Council to … proceed with the completion of the convention’, thus putting the process back on track.

IV. The Ad Hoc Committee Draft 18 GA Res. 180(II) brought new momentum and paved the way for the next stage of the drafting process.74 In early 1948, ECOSOC established an Ad Hoc Drafting Committee, which, over the course of the next months, produced the second full draft of the Convention (the ‘Ad Hoc Committee Draft’).75 In its discussions, the Ad Hoc Committee drew on the Secretariat Draft, but – perhaps curiously – proceeded from new draft texts submitted by governments, among them a ten-point proposal prepared by the Soviet Union,76 and full drafts submitted by both the US77 and France78. After deliberations, the Ad Hoc Committee opted to proceed on the basis of the text submitted by the Chinese delegation.79 Still, the Ad Hoc Committee Draft did not mark a clear break with the Secretariat Draft: it kept a definition of genocide and listed punishable acts (draft articles II to IV); it continued to declare genocide a crime and required its punishment (draft articles V to VII); and it envisaged interstate cooperation against it as well as UN action (draft articles VIII to X).80 19 As regards the definition of genocide, the notion of ‘cultural genocide’ was retained against US opposition and after ‘a fairly full discussion’.81 Despite opposition from the USSR, Poland and Venezuela, the Committee also – by a narrow 4:3 71 See Lippmann, BUIntLJ 3 (1984), 16–7. Du ¨ lffer describes the United Kingdom as the ‘staunchest opponent of a genocide convention’, and provides much further detail on the respective positions of the Great Powers (in: Safferling/Conze, The Genocide Convention Sixty Years after its Adoption, 58–66). 72 For details see Lippmann, BUIntLJ 3 (1984), 20–4. 73 In the view of Mr. Villa Michel (Mexico) (as cited in Lippmann, BUIntLJ 3 (1984), 23), the draft resolution was ‘a serious retrograde step [and] … amounts to a revocation of the resolution adopted by it on 11 December 1946 [viz. GA Res. 96(I)]’. 74 Details are explored by Lippmann, BUIntLJ 3 (1984), 25–7. 75 Contained, with explanatory commentary, in UN Doc. E/794. The text of the draft (without commentary) is reproduced in Annex 2. 76 UN Doc. E/AC.25/7. 77 UN Doc. A/623. 78 UN Doc. A/623/Add. 1. 79 UN Doc. E/AC.25/9. 80 Drost Genocide, 39–51, provides a useful summary of the draft provisions. 81 Draft article III: see UN Doc. E/794, 17–9; Drost, Genocide, 31–3; Lippmann, BUIntLJ 3 (1984), 30.

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vote – retained a reference to political groups.82 The concept of punishable preparatory acts (among them propaganda) was restricted, as it seemed to create a tension with free speech provisions.83 The complex questions relating to motive and intent to commit genocide were discussed seriously for the first time.84 The Soviet Union unsuccessfully lobbied for an express condemnation of fascism in the preamble, just as France failed to ensure a reference to crimes against humanity, which would have seen genocide as part of that broader category.85 While drawing on the Secretariat Draft in defining and outlawing genocide, the 20 Ad Hoc Committee Draft formulated the genocide-related duties of state parties in a less ambitious way.86 The principle of universal jurisdiction was replaced by a reference to territorial jurisdiction (draft article VII);87 and the notion of mandatory support for UN operations disappeared.88 The Ad Hoc Draft merely referred to an international criminal tribunal, without providing for its jurisdiction; and reparations for victims were no longer referred to at all.89 All this prompted the Soviet delegate to vote against the Ad Hoc Committee, while his Polish colleague abstained. Nevertheless, the Economic and Social Council, by Resolution 153(VII), decided to refer the Ad Hoc Committee Draft back to the General Assembly so that it could complete the drafting process.90

V. The Sixth Committee debate (autumn 1948) During the third session of the General Assembly (1948), the Convention began 21 to take shape. The crucial debates were held in the Sixth Committee, which began by discussing general issues and then went through the Ad Hoc Committee Draft on an article-by-article basis.91 The early discussions (first in the plenary, then in the Sixth Committee) helped clarify the focus of the Sixth Committee’s work. Against objections – notably by the United Kingdom, joined by South Africa – the Committee affirmed the usefulness of a Convention92 and clarified that it should not be referred to the International Law Commission,93 but speedily adopted. The more detailed debates resulted in modifications to nearly all of the provisions of the Ad Hoc Committee Draft and a number of important changes.94 Chief among them was a move towards a narrower concept of genocide, which in the eventual

82 Draft article II: see UN Doc. E/794, 13–4; Drost, Genocide, 29–30; Lippmann, BUIntLJ 3 (1984), 30–1. 83 Draft article IV: see UN Doc. E/794, 22–3; and further Drost, Genocide, 52; Lippmann, BUIntLJ 3 (1984), 31–2. 84 See the succinct summary in UN Doc. E/794, 14. 85 See UN Doc. E/794, at 7 and 8–9. France did however secure a reference to the Nuremberg Tribunal in the draft preamble. 86 See Robinson, Genocide Convention, 23–4, for a summary. 87 Lippmann, BUIntLJ 3 (1984), 32–3. 88 Drost, Genocide, 52. 89 Drost, Genocide, 52–3. 90 For more detail see Lippmann, BUIntLJ 3 (1984), 35–7. 91 For detailed accounts see Lippmann, BUIntLJ 3 (1984), 37–58; Drost, Genocide, 54–119. 92 There had been arguments to adopt the text as a declaration instead, see Drost, Genocide, 54–8. 93 Referral to the ILC had been proposed by the United Kingdom, South Africa and Chile, but that attempt at further delay was defeated by a clear majority: UN Doc. A/C.6/SR.66, 34. 94 The dedicated chapters that follow provide a full account of these changes.

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Convention no longer mentioned ‘cultural genocide’ as a separate category,95 and did not protect political groups either.96 Both decisions were taken after protracted debates and remained controversial; their combined effect is a considerable restriction of the (legal) notion of genocide, which remains controversial to this date.97 22 As regards the obligations of states, the Sixth Committee expressly recognised a duty of states to not only punish, but also prevent genocide, without however defining the precise scope of that obligation.98 Through a series of amendments, submitted to various draft provisions, the United Kingdom (at times joined by Belgium) attempted to clarify the scope of state responsibility in relation to acts of genocide, which the Convention had primarily formulated as a crime of individuals.99 While the drafters were cautious not to admit the principle of criminal responsibility of states, they did recognise the possibility of inter-state proceedings before the International Court of Justice including in disputes ‘relating to the responsibility of a state for genocide or for any of the other acts enumerated in article III’ (as set out in Article IX).100 A further British amendment proposing the addition of a so-called ‘colonial clause’ (by which a metropolitan state can extend the application of a treaty to non-metropolitan territories) prompted a heated debate, but was eventually (narrowly) accepted.101 In most other matters, the Sixth Committee affirmed the approach of the Ad Hoc Committee. 23 After the Sixth Committee had completed its discussion of the Ad Hoc Committee Draft, it referred its own Draft to a Drafting Committee, which presented a polished text in late November 1948. This was again scrutinised and eventually adopted by 30 votes to none. 8 states abstained, namely the Soviet Union and five other socialist countries, the United Kingdom and South Africa.102 The text, together with the Sixth Committee’s report, was then submitted to the Plenary,103 which rejected some final attempts by the Soviet Union, to re-open debates about (amongst other things) ‘cultural genocide’ and preparatory acts. On 9 December 1948, the General Assembly adopted the final text of the Convention unanimously and without abstentions.104

95 Lippmann, BUIntLJ 3 (1984), 44–5; Drost, Genocide, 58–60. The key decision is recorded in UN Doc. A/C.6/SR.83, 206. 96 Lippmann, BUIntLJ 3 (1984), 42–3; Drost, Genocide, 60–3. The eventual decision was taken at a late stage, after the Sixth Committee had initially decided to keep the reference to political groups: contrast UN Doc. A/C.6/SR.75, 115 and UN Doc. A/C.6/SR.128, 663–4. 97 Pars pro multo, see Behrens, in: Behrens/Henham, Elements of Genocide, 237. Paul’s work contains a comprehensive review (Kritische Analyse und Reformvorschlag zu Art. II Genozidkonvention, 2008). 98 For details see Article I, mns 31–50. 99 UN Doc. A/C.6/236 and UN Doc. A/C.6/258. For comment see Article IX, mn. 14. 100 See the debate in UN Doc. A/C.6/SR.105; and further Article IX, mn. 14. 101 UN Doc. A/C.6/236. See the debate in UN Doc. A/C.6/SR.107; and further Article XII, mns 3–4; Drost, Genocide, 71–2. 102 UN Doc. A/C.6/SR.132, 701. 103 UN Doc. A/760. 104 GA Res. 260A(III). Along with the final text, the General Assembly passed two resolutions: GA Res. 260B(III) invited the ILC to study options for the establishment of an international penal tribunal (envisaged in, but not established by, Article VI). GA Res. 260C(III), adopted in response to the United Kingdom’s push for a colonial clause, encouraged colonial powers to extend the application of the Convention to ‘their’ dependent territories.

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C. The Convention in brief, its status and age The Convention that is the product of the drafters’ endeavours is a fairly short 24 document. It comprises no more than 19 provisions, totalling (in its English language version) 1137 words105 – or barely 2 1/2 pages in the UN’s official treaty series.106 Unlike in most other treaties today, the 19 provisions are not grouped in sections or chapters; however they can be broadly divided into five parts: (i) The Preamble and Article I formulate the normative programme of the Convention; they confirm the criminal nature of genocide and formulate essential treaty obligations to prevent and punish it. (ii) Articles II and III define the crime of ‘genocide’ (fairly narrowly) and list punishable acts (such as commission, complicity, attempt, incitement, and conspiracy). These two provisions are the Convention’s main provisions of substantive criminal law. Considered by many to be too restrictive, Article II’s definition has been copied verbatim into statutes of international criminal tribunals and constitutes an agreed ‘core’ of genocide. (iii) Articles IV to VII address various aspects of treaty implementation at the domestic level and through inter-state cooperation. They spell out in more detail the duty (mentioned in Article I) to punish genocide, mandate national legislation against genocide and facilitate the extradition of perpetrators. (iv) Articles VIII and IX address enforcement action through UN mechanisms, the former in general terms (envisaging institutional action by the Organization), the latter by enabling disputes to be submitted to the International Court of Justice, the UN’s principal judicial organ, for binding settlement. (v) Finally, no less than ten provisions (Articles X to XIX) are ‘protocolar’ or ‘operative’107 in nature. They stipulate who can become bound by the Convention, and how; they address questions of treaty amendment and suspension; and they clarify the role of the depositary. As a treaty, the Convention is binding only on states that express their consent to 25 be bound. Given its ‘humanitarian and civilizing purpose’,108 it clearly aspires to universal membership. In this regard, the Convention has been a success, although not an unequivocal one. Over the past 65 years, 143 states have expressed their desire to be bound by its terms (sometimes subject to reservations).109 This is an impressive figure, but perhaps less than one might expect from a ‘quintessential normative treaty’,110 and lower than, for example, the number of state parties to the four Geneva Conventions, the Convention on the Rights of the Child, or the Convention against Torture.111 While most of the major states of the world are party to it, for a range of 105 This may be contrasted to other universal treaties outlawing particularly egregious forms of conduct: see e. g. the Convention against Torture (comprising 5,178 words) or the Convention against Forced Disappearances (comprising 7,235 words). 106 78 UNTS 277. An electronic copy of the original is at http://treaties.un.org/doc/Treaties/1951/ 01/19510112%2008-12%20PM/Ch_IV_1p.pdf. 107 See the title of Del Mar’s contribution to Gaeta, Genocide Convention, 494. 108 ICJ, Reservations opinion, ICJ Reports 1951, 15, 23. 109 For details see Annex 4; and further the special entry on Reservations. 110 See Pellet, in YbILC 1997, vol. II/2, para. 76. 111 The Geneva Conventions have attracted 195 ratifications so far; the Convention on the Rights of the Child 193; and the Convention against Torture 153.

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reasons, more than 50 UN member states (among them Japan, Indonesia or Kenya) are not. These 50 states remain bound by general international law, which – at least as regards the substantive duties to prevent and punish genocide, and establishes similar or identical requirements.112 However, they remain outside the treaty framework; they cannot avail themselves, or be subjected to, treaty-specific enforcement procedures, and – at least outside the core of anti-genocide rules, in the normative penumbra – the precise scope of their obligations is not at all easy to establish. For all these reasons, the quest for universal treaty participation remains an important objective.113 26 In many respects, the structure and substance of the Convention belie its age. If negotiated today, a treaty against genocide – assuming states were to agree on one (which is not sure, and which would certainly take more time than immediately after World War II) – would most probably look quite different. There would presumably be renewed debate about how to define genocide, and a push to broaden the category of protected groups considered by some to be ‘exceedingly narrow’.114 Perhaps ‘political groups’ would be included, perhaps ‘cultural genocide’ or ‘ethnic cleansing’ dealt with expressly.115 The long list of protocolar clauses could be much condensed: much of what drafters felt needed to be spelled out in 1948 – on the functions of depositaries, to give just one example116 – is now generally accepted and dealt with by renvoi. As regards the obligations of state parties, one could hope for more detail on the content of the duty to prevent genocide (which Article I mentions, but the scope of which is not expressly elaborated in the Convention says very little, at least expressly) and for an explicit duty not to commit genocide (which, oddly,117 is not mentioned at all).118 And a 21st century treaty against genocide would presumably pursue rather different strategies of ensuring compliance with its terms. In fact, it is in this area that the 1948 Convention has most clearly been overtaken by subsequent developments in treaty making: it sets up no treaty-specific monitoring body; knows of no reporting or complaints procedures and sees no role for meetings or conferences of state parties.119 Instead, dispute settlement is a matter for state parties and the ICJ. To 112 Already in 1951, the International Court of Justice stated in the Reservation opinion that ‘the principles underlying the Convention are principles … are recognized by civilized nations as binding on states, even without any conventional obligation’ (ICJ Reports 1951, 15, 23; emphasis added). 113 In HRC Res. 22/22, the Human Rights Council ‘[e]xpresse[d] its appreciation to all States that have ratified or acceded to the Convention on the Prevention and Punishment of the Crime of Genocide’ and ‘Call[ed] upon States that have not yet ratified or acceded to the Convention to consider doing so as a matter of high priority’ (paras 5 and 6). For similar initiatives see Human Rights Council Resolution 7/25; Whitaker Report, para. 70; and the High Level Panel Report, para. 233 (‘All Member States should sign, ratify and act on all treaties relating to the protection of civilians, such as the Genocide Convention, the Geneva Conventions…’). 114 Schabas, in: Shelton, Encyclopedia, 204. 115 As regards protected groups, see e. g. Behrens, in: Behrens/Henham, Elements of Genocide, 252: ‘the limitation … to the four named groups is inappropriate. … [It] imposes a threshold based on poor foundations’. In GA Res. 47/121, the UN General Assembly decried the ‘the abhorrent policy of ‘ethnic cleansing’, which is a form of genocide’. For comment see Article II, especially at mns 9, 19, 95. 116 See Article XVII, mns 1 and 4–7. 117 This indeed is the ‘Convention’s curious omission’ (Quigley, Genocide Convention, 222). 118 See for details Article I, mns 31–81. 119 For proposals to remedy these shortcomings see infra, mn 28.

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say the Convention was ‘inattentive to enforcement’120 is probably inaccurate but its enforcement strategy very much follows a mid-20th century approach that has gone out of fashion since.121 And so the 1948 Convention remains ‘Janus-faced’:122 ‘premier document’123 of the anti-genocide regime on the one hand (and not just in a temporal sense); and ‘‘first generation’ treaty for a ‘third’ or ‘fourth generation’ world’ on the other.124 Developments since 1948 are attempts to come to terms with that tension.

D. The Convention over time (1): textual continuity, adaptation, interpretation One way to adapt ‘first generation treaties’ to the realities and demands of 27 subsequent generation is to change them – either by amending the treaty text, or by replacing them with subsequent agreements. Both are quite common in international legal relations. To give just one example, ever since its adoption in 1950, the European Convention on Human Rights has been in a process of permanent reform, largely implemented through (now 15) amendment protocols.125 Other agreements are replaced by subsequent arrangements if they are found to be wanting, as successive generations of law-making initiatives in the law of the sea illustrate.126 The Genocide Convention has neither been amended nor has it been replaced. Treaty revision is envisaged in Article XVI, but no revision has ever been officially proposed by any treaty party; and in fact any initiative to this effect – let alone a proposal to replace the existing regime – would presumably be considered an attack on the sanctity of the Convention.127 Over the decades, reform proposals have been directed at the definition of genocide as set out in Article II, which is considered ‘exceedingly narrow’ by many.128 As regards implementation, they have mostly been in the form of calls for a new, optional procedure supplementing the Convention. The creation of a treaty body – modelled after committees set up by the various UN human rights

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Lippmann, ArizonaJIL 15 (1998), 505. On inter-state dispute settlement clauses see notably Tams, in: Giegerich, A Wiser Century?, 461; and, more succinctly, Article IX, mns 3, 49. 122 See Cassese, in: Gaeta, Genocide Convention, 537. 123 Rotherberg, in: Shelton, Encyclopedia, 396. 124 Lippmann, ArizonaJICL 15 (1998), 506. 125 See, most recently, Protocol No. 15, seeking to protect the Court’s from its success so that it ‘can continue to play its pre-eminent role in protecting human rights in Europe’ (as stated in the Preamble): see http://conventions.coe.int/Treaty/en/Treaties/Html/213.htm. 126 Notably, the four 1958 Geneva Conventions on the Law of the Sea, subsequently replaced by the 1982 UN Convention on the Law of the Sea, which, pursuant to its Article 311, ‘shall prevail, as between States Parties, over the Geneva Conventions on the Law of the Sea of 29 April 1958’. 127 Cassese is even more cautious: see his concluding remarks in: Gaeta, Genocide Convention, 543–4. 128 The quotation is taken from Schabas, in: Shelton, Encyclopedia, 204. Scholarship on the Convention’s allegedly restrictive definition is abundant: for early criticism see e. g. Drost, 122–5; for a comprehensive account see Paul, Kritische Analyse; for a useful summary Behrens, in: Behrens/Henham, Elements of Genocide, 237. But, as Martin Mennecke rightly points out, ‘Governments have had numerous opportunities to amend the original definition to address any shortcomings or new developments – but never have done so’; and also notes that ‘is far more flexible and open for new interpretations than many of its critics had believed’ (Mennecke, in: Boender/ten Have, Holocaust and Other Genocides, 149 and 152). 121

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treaties – has been the most popular – reiterating proposals made in the 1980s, Kofi Annan, in his ‘Stockholm proposals’ e. g. suggested ‘State parties to the Genocide Convention … consider setting up a Committee on the Prevention of Genocide, which would meet periodically to review reports and make recommendations for action’.129 But these and similar proposals130 have yielded fairly little, perhaps because the trend in human rights law has been to streamline activities of existing treaty bodies rather than to add new institutions. And overall, despite the occasional reform proposal, ‘there has [indeed] been no serious effort to reform the Treaty’.131

I. Extra-conventional rules 28 In the absence of treaty revision or amendment, the international legal regime against genocide has not been static. It has evolved in two ways in particular. The first has been mentioned already: new layers of extra-conventional rules against genocide, added onto the Convention’s regime, have been agreed.132 As noted above,133 to some extent these extra-conventional rules integrate the fight against genocide into more broadly-defined causes – among them the protection of peace and security through UN enforcement action on the basis of Chapter VII of the UN Charter (which includes sanctions against genocide and its perpetrators); the pursuit of international criminal justice through international criminal tribunals (which are competent to prosecute perpetrators of genocide); as well as domestic court proceedings on the basis of the universality principle (which, amongst other things, permits the exercise of jurisdiction in matters of genocide). Other initiatives are specifically focused on genocide, but not legally based on the Genocide Convention – such as the appointment of a Special Adviser on the Prevention of Genocide, and UN resolutions and initiatives like the Stockholm Forum aimed at reinvigorating the fight against genocide. Clearly, these extra-conventional rules are of crucial relevance – and clearly, their existence has an impact on the role and relevance of the Convention – precisely because the fight against genocide is so relevant, and precisely because the Convention’s approach to enforcement belies its age, the Convention is only part of the international legal regime and has had to be (as Lippmann put it perceptively) ‘energized by developments outside the contours of the Convention’.134 In fact, very often, at least where responses against genocide are concerned, extra-conventional measures not based on the Convention seem the most promising, and capture the most attention. But would they have been agreed without the Convention’s normative fundament? The least that could be said is that (in the words of Shany) ‘the high rhetoric used in the Convention conferred legitimacy on a

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Annan, Stockholm Proposals, 2. Whitaker Report, paras 85–90; Ruhashyankiko Report, paras 479–96; Lippmann, ArizonaJICL 15 (1998), 505–6. 131 Lippmann, ArizonaJICL 15 (1998), 506. 132 At times, commentators only refer to developments in customary law: see e. g. Cassese, in: Gaeta, Genocide Convention, 537–8 and 543; Shany, in: Gaeta, Genocide Convention, 25 (‘a parallel body of customary international law has emerged’). But this ignores the crucial relevance of treaties other than the Genocide Convention, and of treaty-based mechanisms (such as ‘R2P’ developed under the UN Charter regime). 133 Supra, mns 3–4. 134 Lippmann, ArizonaJICL 15 (1998), 506. 130

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series of moves by courts and other deliberative bodies’;135 and while these moves have ‘broadened and deepened the scope of the Convention’s obligations’,136 they draw on the strength of the foundational – conventional – regime.

II. Treaty interpretation between continuity and change The conventional regime itself has not been static either. At least to some extent, it 29 has been adapted to new realities and demands – this is the second way in which international regime against genocide has evolved since 1948. While the wording of its provisions has remained the same, the Convention has been re-interpreted ‘from within’, by means of treaty interpretation. The dedicated chapters, seeking to identify the meaning of the Convention’s provisions, trace this process in detail. They approach the Convention’s provisions on the basis of the general principles of treaty interpretation. These principles – which remain flexible, but indicate how treaty provisions are to be approached – are laid down in Articles 31 to 33 of the Vienna Convention on the Law of Treaties, adopted in 1969. As the Vienna Convention does not apply retroactively,137 Articles 31 to 33 VCLT do not apply to the 1948 Genocide Convention as treaty law. However, the interpretative principles embodied in the Vienna Convention are generally taken to reflect general international law,138 and as such, can be drawn upon when interpreting the Genocide Convention.139 1. Canons of treaty interpretation In essence, the general principles of treaty interpretation formulate techniques 30 designed to ‘giv[e] effect to the expressed intention of the parties’.140 Article 31 para. 1 VCLT (reflecting general international law) collapses these techniques into one ‘general rule of [treaty] interpretation’, pursuant to which ‘[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’.141

In applying this general rule, common techniques (or ‘canons’) of interpretation 31 can be employed.142 The ‘ordinary meaning to be given to the terms of the treaty’ provides the starting point of the analysis. The text as it stands is presumed to be an 135

Shany, in: Gaeta, Genocide Convention, 25. Shany, in: Gaeta, Genocide Convention, 25. 137 See Article 4 VCLT. 138 See ICJ, Kasikili/Sedudu case, ICJ Reports 1999, 1045, paras 18–20; Do ¨ rr, in: Do¨rr/Schmalenbach, VCLT Commentary, 525. 139 In line with this approach, in the Bosnian Genocide case, the International Court interpreted the provisions of the Genocide Convention on the basis of general rules of interpretation as set out in the Vienna Convention: ‘Those propositions, reflected in Articles 31 and 32 of the Vienna Convention on the Law of Treaties, are well recognized as part of customary international law’; see ICJ Reports 2007, 43, para. 160. 140 McNair, Law of Treaties, 365. 141 Highlighting the indivisibility of the interpretative process, the ILC spoke of the ‘crucible approach’: see the ILC’s Report on the Draft Articles on the Law of Treaties (which formed the basis of the Vienna Convention), YbILC 1966, vol. II, 220–1. 142 The following is a highly condensed summary. For much more detail on the process and principles of treaty interpretation see Gardiner, Treaty Interpretation; Sinclair, Vienna Convention, 114–158; Waibel, Uniformity vs. Specialisation, in: Tams/Tzanakopoulos/Zimmermann, Law of Treaties (forthcoming); and the sections on Articles 31–33 in the VCLT Commentaries by Do¨rr/ Schmalenbach, Villiger and Corten/Klein. 136

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authentic expression of the parties’ intention. In the words of the International Court of Justice, interpretation must be based ‘above all upon the text of the treaty’.143 At times, the ordinary meaning may be rather straightforward; at times, identifying it is a complicated process. In the case of the Genocide Convention, the co-existence of five authentic language versions (Chinese, English, French, Russian, Spanish)144 adds a layer of complexity. Each of the five authentic texts is of equal value, and they are presumed to have one common meaning. Clearly, the move towards multilingual treaty drafting presents challenges,145 and experience with the Genocide Conventions illustrates this.146 However, multilingualism may also facilitate the interpretation, as different authentic versions can ‘help one another’ if ‘one text [is construed] by reference to another’.147 32 In tracing the ordinary meaning of particular phrases, treaty provisions are not to be read in isolation. Context matters, in fact it may often be decisive.148 The ‘ordinary meaning’ can only be identified if a treaty provision is seen as part of the treaty as a whole, compared to other provisions (which might use similar language), perhaps even contrasted to the use of language in other treaties (which, depending on the circumstances, could have been simply copied, or from which a particular treaty might have purposefully deviated).149 To illustrate this point, when interpreting the Genocide Convention, links between Articles I and IX can be usefully explored to identify the duties of states; the duty to enact national legislation (Article V) must give effect to the definition of genocide found in Article II – and, more generally, comparison with subsequent human rights treaties often contributes to an understanding of the Convention’s meaning. It is in a given context that words acquire meaning, and interpretation must take account of this. 33 Alongside wording and context, the general rule of interpretation refers to the ‘object and purpose’ of the treaty, thus requiring a purposive, or teleological, interpretation of treaties.150 The reference is to the overarching aims of the parties in concluding a treaty, which may be hinted at in introductory clauses, the treaty’s title, or be derived from its preamble.151 Purposive readings will often be a way to ensure the effectiveness of a treaty clause: uncertainties in the wording may be ‘overcome’ if this is a way of ‘enabl[ing] the treaty to have appropriate effects’.152 143

Territorial Dispute, ICJ Reports 1994, 6, para 41. See Article X: ‘The present Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic…’. All five authentic versions are reproduced in Annex 1. 145 See Villiger, Commentary on the VCLT, 462: ‘a complete, perfect harmony between treaty texts in different languages will never be possible’; a comprehensive study on this matter was presented by Hilf, Auslegung mehrsprachiger Vertra¨ge. 146 See notably infra, Article X, mn. 10, for comment on the pragmatic ‘correction’ of the Chinese language text. 147 McNair, Law of Treaties, 433. 148 See the ILC’s Report on the Draft Articles on the Law of Treaties (which formed the basis of the Vienna Convention), YbILC 1966, vol. II, 221: ‘the ordinary meaning of a term is not to be determined in the abstract but in the context of the treaty’. 149 Do ¨ rr rightly states that ‘[t]he systematic structure of a treaty is thus of equal importance to the ordinary linguistic meaning of the words used, in order to determine its true meaning’ (in: Do¨rr/ Schmalenbach, VCLT Commentary, 543). 150 On the notion see Sinclair, Vienna Convention, 130–6; Klabbers, Object and Purpose, in: MPEPIL. 151 See infra, mns 50–5. 152 ILC, Report on the Draft Articles on the Law of Treaties, YbILC 1966, vol. II, 219. 144

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However, purposive readings are no sorcery: they are meant to elucidate the meaning of terms, not to invent ‘extraordinary’ meanings. Within those confines, object and purpose are important factors guiding the search for the true meaning of a treaty. Finally, the drafting history can help clarify the meaning of a treaty clause.153 The 34 Vienna Convention treats the ‘preparatory work’ merely as a ‘subsidiary means of interpretation’ that can be relied upon to confirm the results of a textual/contextual/ purposive interpretation, to remove ambiguities or correct ‘absurd’ outcomes.154 This reflects an objective approach to interpretation focusing on the text as an expression of the parties’ intentions (as opposed to their subjective views), and a desire not to freeze the meaning of treaty terms; which is of course to be respected in interpreting treaty clauses.155 Still, in the case of the Genocide Convention, the fully-documented travaux can play a useful role: they can be extremely important ‘for the general understanding of the treaty’;156 they can help identify choices that were made; and very often, revisiting the drafting process helps appreciate the function played by a particular treaty clause.157 None of this should be read as a plea for a purely historical-subjective method of interpretation. The general principles of treaty interpretation do not require interpreters to suppress what has been described as ‘it is the first instinct of any international lawyer to try and figure out what the drafters of the treaty may have had in mind… and the place to look for evidence of what they may have had in mind is, precisely the traveaux préparatoires’.158 The travaux certainly do not control the interpretation, but they can enrich it. Interpretation – whether textual, systematic, or teleological/purposive – does 35 not take place in the abstract. In seeking to ascertain ‘the expressed intention of the parties’, factors external to the treaty text may be taken into account. Article 31 para. 3, the Vienna Convention – again reflecting a general principle of interpretation – makes reference to the ‘subsequent practice’ of parties in applying the treaty, as well as to ‘any relevant rules of international law applicable in the relations between the parties’.159 Subsequent practice may provide vital clues as to how the parties understood ‘their’ obligations. Other ‘relevant rules of international law’ of course cannot dominate the interpretation of a particular treaty (they do not form part of it, after all), but they make up the broader 153

See further Sinclair, Vienna Convention, 141–7; as well as Klabbers, NILR 50 (2003), 267. See Article 32 VCLT (reflecting customary international law). 155 As Villiger notes, the drafting history ought ‘not be invoked first, at the outset of interpretation’ – which, as he stresses, is ‘not [an] unreasonable proposition if one remembers the pitfalls inherent in the use of these materials’ (Villiger, Commentary on the VCLT, 447). 156 See United Nations Conference on the Law of Treaties, 1968, Official Records, 184, para. 69. 157 Klabbers makes the point very well: ‘[I]f it is correct that words in isolation have no meaning, then a search for context is inevitable; equally inevitable must be an investigation into the intentions of the drafters, for only they can have some idea as to why they used a certain word rather than a different one’ (NILR 50 (2003), 285). 158 Klabbers, NILR 50 (2003), 281. See also ibid., 284: ‘[M]ore often than not, application of the general rule [of interpretation] alone does not clinch the argument, and thus resort to travaux pre´paratoires, whether supplementary or not, is simply necessitated by the resilience of life or, more mundane perhaps, by the ambiguities that have managed to find their way into the text’. 159 Do ¨ rr speaks of ‘Interpretative Means Additional to the Context’ (in: Do¨rr/Schmalenbach, VCLT Commentary, 552). 154

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normative context.160 In the Namibia opinion, the International Court put this rather emphatically when noting that ‘an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation’.161

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Finally, views of influential interpreters may play an important role.162 The Genocide Convention sets out no procedure for the authoritative, authentic interpretation of its terms, and the absence of coordinated meetings or conferences of parties163 means that there is no continued process of engaging with, or adapting, the treaty. However, the judicial interpretation of some of its clauses in ICJ proceedings instituted on the basis of Article IX, or indeed in advisory proceedings, may be highly influential if it is recognised by the treaty parties as a persuasive construction of the treaty.164 Court decisions rendered, not on the basis of the Genocide Convention, but on aspects of international criminal law that are of relevance to the Convention (e. g. because they concern terms that have been copied from the Convention into other treaties, such as the definition of genocide), may equally gain persuasive authority. As with ICJ decisions, they do not ‘bind’ treaty parties but they can give precision to the meaning of uncertain terms and thus become ‘beacons of orientation’ guiding the interpretative process.165 2. Interpreting the Genocide Convention

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As is clear form this brief summary, the general regime of treaty interpretation as reflected in Articles 31 to 33 VCLT typically does not prescribe, nor preclude, specific results.166 As has often been noted, interpretation is not a mechanical exercise. Its outcomes depend on assumptions and value judgments. Very often, the (one) correct interpretation does not exist; competing readings typically have but ‘varying degrees of legal merit’.167 As noted by Sinclair, ‘widely differing results can still be achieved even if a conscious effort is made’ to follow the general principles of treaty interpretation.168 But this does not mean that ‘anything goes’ – degrees of 160 The ILC in particular has placed emphasis on the ‘principle of systemic integration’: see Fragmentation in International Law. Report of a Study Group of the International Law Commission, Finalized by Martti Koskenniemi, UN Doc. A/CN.4/L.682, paras 410–80. 161 ICJ Reports 1971, 16, para. 53. 162 See Do ¨ rr, in: Do¨rr/Schmalenbach, VCLT Commentary, 530–3, for helpful clarifications. 163 See supra, mn. 26. 164 See Article IX, mn. 10; and further Do ¨ rr, in: Do¨rr/Schmalenbach, VCLT Commentary, 531: ‘Those organs then regularly assume an authoritative role in determining the actual meaning of the treaty provisions, the more so when their decisions concerning the interpretation are given binding force in the treaty itself. The consistent jurisprudence of an authorized tribunal or the practice of other organs in interpreting the treaty may in turn be considered subsequent practice for the purpose of interpretation’ (footnotes suppressed). 165 See Berman, in: Tams/Sloan, Development of Int’l Law by the ICJ, 21, emphasising that those applying international law ‘need beacons, guides and orientation points, all the more so because of the non-structured, non-hierarchical nature of its rules’. 166 Do ¨ rr in: Do¨rr/Schmalenbach, VCLT Commentary, 522: ‘The VCLT rules on interpretation, it is rightly said, reflect an attempt to designate the elements to be taken into account in that process, and to assess their relative weight in it, rather than to describe, let alone prescribe, the process of interpretation itself’ (citing Sinclair, Vienna Convention, 117). 167 See Lauterpacht, The Development of International Law, 398. 168 Sinclair, Vienna Convention, 153.

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legal merit vary after all. Principles of treaty interpretation organise the process of interpreting and they require a good faith effort to interrogate the text and identify its meaning. In that process, static and dynamic factors co-exist and vie for interpretative influence; interpretation has to balance demands for continuity and change. A negotiated treaty text will hardly ever be re-read entirely; the ordinary meaning of provisions negotiated in 1948 needs to be taken seriously when they are interpreted and applied decades later. The fact that Article II mentions particular groups, or that it requires intent to destroy them ‘as such’, cannot simply be ‘wished’ or ‘interpreted away’; just as much as Article IX’s reference to disputes about ‘the Convention’ limits the role of the ICJ as a dispute settlement organ. Interpretation must, after all, be based ‘above all upon the text of the treaty’.169 However, even where a text remains unchanged, not everything is set in stone. The 38 general principles of treaty interpretation are not designed to freeze the meaning of terms. As normative frameworks evolve, so can treaties that (like the Genocide Convention) form part of it. If ‘an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation’,170 then there is no reason why the renaissance of international criminal law from the 1990s should not affect the interpretation of a foundational treaty concluded in 1948. More specifically, the establishment of international criminal tribunals can ‘resuscitate’ a dormant provision like Article VI, which, from 1948, had referred to an ‘international penal tribunal’ without establishing it.171 If views on UN competences and responsibilities evolve (and evolve dynamically), this can be fed back into a treaty in whose negotiation the UN has a vested interest. None of this is specific to human rights (even though in this particular field, interpreters have emphasised dynamic elements of interpretation); it is a matter of general treaty interpretation and equally applies to, for example, the interpretation of depositary powers under Article XVII.172 In short, under the regular regime of treaty interpretation, textual continuity does not preclude adaptation, re-adjustment or re-reading. Factors emphasising textuality/stability are part of the interpretative canon just as much as are those enabling change and evolution. Interpretation must ignore neither. There is room for treaty change ‘from within’, below the level of treaty amendment, which complements extra-conventional developments relating to genocide. The subsequent chapters inquire to what extent change from within has taken place.

E. The Convention over time (2): retroactivity? There is another dimension to the Convention’s application over time: its 39 temporal scope of application. On the face of it, the matter seems straightforward. The Convention was adopted in 1948; pursuant to its Article XIII, it entered into force as a treaty on 12 January 1951 (90 days after the twentieth state had expressed its consent to be bound by it173) and for states subsequently joining the treaty regime 90 days after their ratification or accession. These seemingly straightforward rules however do not settle the matter. They concern the entry into force of the 169

Territorial Dispute (Libya v Chad), ICJ Reports 1994, 6, para. 41. ICJ Reports 1971, 16, para. 53. 171 See ICJ, Bosnian Genocide case, ICJ Reports, 2007, 43, paras 443–7. 172 See Article XVII, mns 1 and 7. 173 For comment on these curious circumstances see Article XIII, mn. 9. 170

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Convention, not its temporal scope of application.174 The two can be distinguished: in principle, it is perfectly possible for a treaty to enter into force at one point (e.g. on 12 January 1951), but to apply to events preceding that date. The question thus raised is commonly referred to as one of ‘retroactivity’, understood to denote the application of a norm to past events, facts or situations. It is not specific to the Genocide Convention, but a general problem concerning the application of treaties, and it is to be addressed on the basis of the general principles of treaty law.175

I. Implications of retroactivity 40 Before addressing these principles, two preliminary remarks are called for. First, it is worth considering the implications of retroactively applying the Genocide Convention. The benefits would no doubt be considerable. A treaty formulating universal principles (such as rules against genocide) would apply to conduct preceding its adoption, or its entry into force, for a particular state. As a consequence, even where the prevention of past genocide has become impossible, treaty breaches occurring prior to the Convention’s entry into force could be addressed on the basis of the Convention’s regime against genocide. Precisely this of course prompts major concerns. Should previous conduct really be assessed against the yardstick of normative convictions forged in post-World War II debates, including in criminal proceedings governed by the nullum crimen principle? Moreover, if retroactivity were accepted in principle, where should it stop – with the Hereros;176 with mass atrocities committed by colonising powers against native populations;177 or with the slaughter of the Midianites at the hand of Israelities, recounted in the Old Testament?178 And could standards and definitions formulated in a 1948 treaty meaningfully be applied in the absence of dependable evidence? As is clear form even this briefest of considerations, debates about retroactivity are highly charged. 41 Not everything – and this is the second preliminary remark – is a matter for the retroactive application of treaties, though. In particular, it is necessary to distinguish between the retroactive application of a particular treaty norm (such as a provision of the Genocide Convention), and the retroactive application of parallel rules derived from other sources, notably from general international law (such as a customary prohibition to commit genocide). The co-existence of treaty-based and customary rules of interpretation – mentioned above179 – may serve to illustrate the point. While the treaty-based rules set out in Articles 31 to 33 VCLT do not only apply retroactively, customary rules of interpretation can guide the interpretation of norms not governed ratione temporis by the Vienna Convention. Similar considerations apply wherever treaty and customary rules co-exist. The temporal scope of the Genocide Convention needs to be determined independently of that of general international law rules against genocide. To the extent that the Convention reflects 174 See Kotzur, Temporal Dimension, in: Tams/Tzanakopoulos/Zimmermann, Law of Treaties (forthcoming). 175 For details on retroactivity see Kotzur, Temporal Dimension, in: Tams/Tzanakopoulos/ Zimmermann, Law of Treaties (forthcoming); Bleckmann, Zao¨RV 33 (1973) 38; as well as the sections on Article 28 in the VCLT Commentaries by Villiger, Do¨rr/Schmalenbach and Corten/Klein. 176 For a succinct summary see Harring, in: Shelton, Encyclopedia, 436. 177 See e. g. Martin, in: Shelton, Encyclopedia, 740. 178 The biblical account is in Numeri, chapter 31 (‘Vengeance on the Midianites’). 179 Supra, mn. 29.

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general international law, general international law can apply even where the Convention does not apply.180 Conversely, if general international law applies, this does not imply that parallel treaty law provisions also apply. Even if they are identical in substance, treaty law and general international law retain ‘a separate existence’.181 In the Nicaragua case, the International Court of Justice noted in rather sweeping terms that ‘customary international law continues to exist and to apply, separately from international treaty law, even where the two categories of law have an identical content’.182

II. A presumption against retroactivity In the light of these considerations, the principles governing the temporal 42 application of treaties can be addressed. The general law of treaties deals with the temporal scope of obligations by means of a rebuttable presumption. Reflecting a prior customary rule183 (which applies to the Genocide Convention), Article 28 VCLT provides: ‘Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.’

The presumption is thus against the retroactive application of treaties. As a rule, a treaty applies only from the moment it enters into force for a particular party,184 but not to acts or facts that took place beforehand, or situations that ceased to exist before the treaty entered into force.185 The presumption can be rebutted in two ways: treaties do apply retroactively, 43 exceptionally, if ‘a different intention appears from the treaty’, or if it ‘is otherwise established’. The former exception covers express clauses on retroactivity. These are not uncommon: by way of illustration, reference can be made to Article I of the Convention on the Non-Applicability of Statutes of Limitations to War Crimes and Crimes Against Humanity, which requires parties not to apply statutory limitation to the crimes listed in the Convention ‘irrespective of the date of their commis-

180 To give just one example, the United States, which ratified the Genocide Convention in 1988, was bound by parallel customary rules prior to that date. 181 See Nicaragua case, ICJ Reports 1986, 14, para. 179. 182 Nicaragua case, ICJ Reports 1986, 14, para. 179. 183 Villiger, Commentary on the VCLT, 386. In the Ambatielos case, predating the adoption of the Vienna Convention, the ICJ had declined to apply a 1926 treaty to prior events: this, it said, ‘would mean giving retroactive effect to Article 29 of the Treaty of 1926, whereas Article 32 of this Treaty states that the Treaty, which must mean all the provisions of the Treaty, shall come into force immediately upon ratification. Such a conclusion might have been rebutted if there had been any special clause or any special object necessitating retroactive interpretation. There is no such clause or object in the present case. It is therefore impossible to hold that any of its provisions must be deemed to have been in force earlier’ (ICJ Reports 1952, 28, 40; emphasis added). 184 No further distinction is drawn between the entry into force of a treaty as such, and its entry into force for a particular party; only the latter is determinative. 185 In some instances, careful analysis may be called for in dealing with acts, facts or situations that extend over long periods of time and remain effective after the entry into force of a particular treaty. In this regard, Article 14 of the ILC’s Articles on State Responsibility provides some guidance. Pursuant to its para. 2, the wrongfulness of conduct ‘extends over the entire period during which the act continues’ (YbILC 2001, vol. II/2, 59).

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sion’.186 The second exception (‘a different intention is otherwise established’) covers instances of implied retroactivity – e. g. mandated by the nature of the treaty or because of the treaty context.187 Treaties designed to interpret an earlier treaty are commonly referred to, as are treaties seeking to regulate legal situations predating their existence.188

III. Retroactivity and the Genocide Convention 44

As regards the main obligations imposed by the Genocide Convention, the presumption against retroactivity would e. g. mean that genocidal acts that took place prior to 1951 could never amount to treaty breaches. What is more, states that joined the treaty regime at a later stage only are bound pro futuro, not for acts, facts, or situations prior to their ratification or accession. While in both instances, customary rules against genocide could still apply,189 treaty-specific means of invoking responsibility for genocide – notably by means of ICJ proceedings pursuant to Article IX – would not be available. All this has important implications for states that may have been responsible for genocidal acts in the past, or for states considered invoking the responsibility of other states for past conduct. Not surprisingly, there have been attempts to rebut the presumption.190 However, while these 186

Express clauses can also envisage ‘optional retroactivity’: see e. g. Article 7 para. 2 of the Vienna Convention on State Succession in Respect of Treaties, which enables a state party to ‘make a declaration that it will apply the provisions of the Convention in respect of its own succession of states which has occurred before the entry into force of the Convention.’ 187 Some commentators suggest that even in the absence of an express clause, ‘a different intention [could] appea[r] from the treaty’, but this merely concerns the delimitation between the two exceptions: see e. g. Odendahl, in: Do¨rr/Schmalenbach, VCLT Commentary, 481–2; Villiger, Commentary on the VCLT, 384. 188 Odendahl, in: Do ¨ rr/Schmalenbach, VCLT Commentary, 481. In the Chamizal case, an 1884 boundary treaty was said to clarify and interpret earlier boundary agreements – and thus to apply retroactively (International Boundary Commission International Title to the Chamizal Tract (United States v Mexico), AJIL 5 (1911), 785). In Mavrommatis Palestine Concessions, the PCIJ recognised that Protocol XI to the Treaty of Lausanne ‘was drawn up in order to fix the conditions governing the recognition and treatment by the contracting Parties of certain concessions granted by the Ottoman authorities before the conclusion of the protocol’ – and thus applied retroactively (PCIJ, Ser. A No 2, 34 (1924)). 189 Supra, mn. 41. 190 See e. g. de Zayas, GPN 8/2011 (concerning Armenian claims); Sarkin, Colonial Genocide, 110–23 (assessing potential claims by Herero). On the former case, a study by the International Center for Transitional Justice is more detailed and arrives at a different result: ICTJ, Applicability of the Genocide Convention (2003). While claims by Armenian and Herero victims squarely raise questions of retroactivity, these may also come up in a more subtle way: by way of example, see the ICJ proceedings between Croatia and Serbia, in which the applicant – alleging violations of the Genocide Convention – relies on conduct that occurred during the early stages of the Yugoslav war, i.e. at a time when the former Socialist Federal Republic of Yugoslavia was still in existence. In its judgment on preliminary objections, the ICJ declined to rule on the matter, which it considered to be closely interwoven with the merits of the case (which are yet to be addressed). However, its description of the proble´matique is helpful: ‘Serbia’s contention is however that the Court has no jurisdiction under Article IX, or that jurisdiction cannot be exercised, so far as the claim of Croatia concerns ‘acts and omissions that took place prior to 27 April 1992’, i. e., that the Court’s jurisdiction is limited ratione temporis. Serbia advanced two reasons for this: first, because the earliest possible point in time at which the Convention could be found to have entered into force between the FRY and Croatia was 27 April 1992; and secondly, because ‘the Genocide Convention including the jurisdictional clause contained in its Article IX cannot be applied with regard to acts that occurred before Serbia came into

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attempts are entirely understandable, legal arguments supporting them are not readily available. As regards the first exception, no ‘intention’ to provide for retroactivity would 45 seem to ‘appea[r] from the treaty’.191 In fact, if anything, it appears from the treaty that obligations should only apply pro futuro. A considerable number of the Convention’s provisions are designed to be applied in the post-1948 setting. Article I and the title of the Convention emphasise the need for the prevention of genocide, which for prior acts is no longer possible.192 By virtue of Article I, state parties ‘undertake to’ prevent and punish genocide, which suggests a new commitment.193 Similarly, under Article V parties ‘undertake to enact’ domestic legislation against genocide; this, too, seems to require future action.194 Article VIII envisages UN action to suppress or prevent genocide, which at least for genocidal violence predating the establishment of the Organization in 1945 was not an option. In short, the terms of the treaty seem to suggest that when adopting the Convention, drafters sought to lay down universal standards for the future, without retroactive effect.195 There is, however, one phrase that might suggest otherwise. In Article I (and 46 similarly in the Preamble), state parties, ‘confirm that genocide … is a crime under international law’.196 This indeed seems to imply that it was a crime before the adoption of the Genocide Convention. However, this need not be read as an argument in favour of retroactivity. It might rather be taken to imply that the drafters considered genocide to be a crime under general international law even prior to the adoption of the Convention.197 In the light of the ICJ’s above-quoted statement in Nicaragua,198 that rule of general international law however would need to be seen separately from any treaty provision. What is more, the text of Article I suggests that what is being ‘confirmed’ (as opposed to stipulated pro futuro) is merely the existence of a crime of genocide. The specific obligations flowing from that statement – notably the duty to prevent and punish genocide – existence as a State’, and could thus not have become binding upon it. Serbia therefore contended that acts or omissions which took place before the FRY came into existence cannot possibly be attributed to the FRY’ (ICJ Reports 2008, 412, para. 121). 191 See Article 28 VCLT. 192 On this point, a statement by the ICJ in the Bosnian Genocide case seems apposite. Having clarified that ‘a state can be held responsible for breaching the obligation to prevent genocide only if genocide was actually committed’, the Court went on to note: ‘[t]his obviously does not mean that the obligation to prevent genocide only comes into being when perpetration of genocide commences; that would be absurd, since the whole point of the obligation is to prevent, or attempt to prevent, the occurrence of the act’ (ICJ Reports 2007, 43, para. 431). 193 See ICTJ, Applicability of the Genocide Convention, 7; as well as Drost, Genocide, 120: ‘It is immaterial whether the conformation of genocide as a crime reflects to the past de lege lata or to the present de lege ferenda because in either case the Article purports to operate pro futuro by reference to a crime which the Contracting Parties ‘undertake to prevent and to punish’’. 194 See Article V, mn. 10: ‘Article V obliges the addressees to fulfil several material requirements after the domestic ratification of the Convention, namely to enact ‘necessary legislation’’ (emphasis added). 195 See also ICTJ, Applicability of the Genocide Convention, 7: ‘The text of those provisions of the Convention imposing obligations on States Parties to the Convention almost universally obligate the States Parties to take action in the future.’ 196 Emphasis added. 197 See further Article I, mns 98–101. 198 ICJ Reports 1986, 14, para. 179; and supra, mn. 41.

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are not ‘confirmed’: rather the words ‘undertake to’ suggest that specific obligations relating to genocide are imposed upon parties by the treaty.199 And the definition of genocide provided for in Article II is to be valid for ‘the present Convention’. In short, the declaratory language of Article I only provides very limited support for a retroactive reading of the Convention. All things considered, no ‘intention’ to provide for retroactivity ‘appears from the treaty’.200 47 As regards the second exception, it also seems difficult to ‘otherwise establish’ a case for retroactivity. The Genocide Convention certainly was not designed to interpret an earlier treaty – in the way successive ‘generations’ of boundary agreements might be construed.201 What is more, during the drafting process, representatives emphasised the prospective character of the treaty that was being negotiated. During the Sixth Committee debates, Mr. Morozov e. g. noted that ‘[h]is country attached great importance to a convention on genocide, which it felt was indissolubly linked with fascism, nazism and other systems propagating theories of racial hatred. A convention was necessary for the prevention of future crimes of that type and to provide a sound foundation for the peace of the world’.202

According to Mr. Prochazka, the Convention was to ‘include express provisions asserting the peoples’ desire to punish all those who, in the future, might be tempted to repeat the appalling crimes which had been committed’.203

Similarly, pursuant to Mr. Maúrtua and Mr. Tarazi, the drafters should not be guided too much by approaches of the Nuremberg tribunals, as they were ‘drawing up a convention for the punishment of those who would be guilty of violating its provisions in the future’204 and thus ‘laying down the law for the future’.205 48 As regards the ‘nature’ of the treaty, which is typically said to justify retroactivity in exceptional settings, the matter is certainly not straightforward. It could well be argued that the ‘eternal values’ enshrined in the Convention would require a retroactive application. This, in fact, has been read into an equivocal passage of the ICJ’s preliminary objections judgment in the Bosnian Genocide case, in which the Court seemed to reject the respondent’s argument based on non-retroactivity.206 However, in its subsequent judgment in the Croatian Genocide case, the Court has clarified its earlier ruling and stated that it had only affirmed jurisdiction over acts ‘subsequent to the moment at which the [Respondent] had come into existence and 199 ICTJ, Applicability of the Genocide Convention, 7; Drost, Genocide, 120; as well as Article I, mn. 100. 200 Robinson, Genocide Convention, agrees; to him the matter in fact seems beyond dispute: ‘it could hardly be contended that the Convention binds the signatories to punish offenders for acts committed previous to its coming into force for the given country’ (at 114). Schabas’ assessment is equally straightforward: ‘There is nothing in the Genocide Convention to suggest ‘a different intention’. Therefore, ‘(t)he simple fact is that the Genocide Convention is not applicable to acts committed before its effective date’’ (Genocide in Int’l Law (2nd ed.), 625, citing Jacob Robinson, And the Crooked Shall Be Made Straight, New York: MacMillan, 1965, 82). 201 See supra, mn. 43. 202 UN Doc. A/C.6/SR.64, 13. 203 UN Doc. A/C.6/SR.66, 30. 204 UN Doc. A/C.6/SR.109, 498. 205 UN Doc. A/C.6/SR.110, 508. 206 ICJ Reports 1996, 595, para. 34. For criticism see Judge ad hoc Krec ˇa’s dissent in the case (para. 120); and see Chua/Hardcastle, NILR 44 (1997), 414, for comment.

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had thus become capable of being itself a party to the Convention’.207 While future rulings in the Croatian Genocide case might yield more definitive pronouncements, for the time being, it seems far-fetched to claim that ‘in disputes involving jurisdictional clauses, the jurisdiction of the International Court of Justice includes disputes arising out of events occurring prior to the entry into force of the treaty’, thus ‘provid[ing] a backdoor for the retroactive application of the treaty’s substantive provisions’.208 In fact, while a retroactive application of the Convention might be desirable, more realistically, non-retroactivity might have been the condition for universal participation (which the Convention aspires to).209 It is indicative that no state party has ever brought proceedings on the basis of the Genocide Convention for past atrocities by another state. The German government in fact has made public its view that the Convention ‘does not possess retroactive effect’.210 As is clear from these considerations, on balance, very little suggests that the 49 Genocide Convention should apply retroactively. While confirming an existing crime, as a treaty it was to lay down a new regime against genocide. Past atrocities mandated its adoption, and facilitated its speedy drafting. But they were not to be judged against the new normative standards. This severely limits the impact of the Convention. At the same time, it illustrates that the Convention combines visionary thinking with a healthy dose of pragmatism.

F. The Preamble In the light of the preceding considerations, the Preamble to the Convention may 50 be briefly considered. As with other preambles, it reflects the drafters’ views on the role and the position of the Convention and its analysis yields insights into the treaty’s main aims. Like the Convention, the Preamble is a fairly short text. Its three recitals and 86 words (in the English language version) stand in marked contrast to preambles of other multilateral treaties211 – and to the loquacity of subsequent documents on genocide.212 Overall, it seems that, at least as regards the Preamble, the drafters largely heeded the wishes of Sir Hartley Shawcross (the representative of the United Kingdom, otherwise not always successful with his proposed amendments), who ‘was wary of long and ambitious preambles which tended to obscure 207 ICJ Reports 2008, 412, para. 123. See supra, fn. 190, for brief comment on the background to the case. 208 Chua/Hardcastle, NILR 44 (1997), 420. 209 See supra, mn. 25; and further ICJ Reports 1951, 15, 23: ‘[t]he Genocide Convention was … intended to be definitely universal in scope’. 210 See Deutscher Bundestag (German Federal Parliament), Document No 17/1956 (2010), 5: ‘Die Konvention u¨ber die Verhu¨tung und Bestrafung des Vo¨lkermordes vom 9. Dezember 1948 ist am 12. Januar 1951 in Kraft getreten. Fu¨r die Bundesrepublik Deutschland ist sie seit dem 22. Februar 1955 in Kraft. Sie gilt nicht ru¨ckwirkend.’ 211 The Preamble to the two 1966 Human Rights Covenants comprise 184 and 179 words, respectively; that to the Convention against Torture 192; that to the Vienna Convention on the Law of Treaties 266. While all this remains relatively modest, preambles of more recent treaties display a trend towards comprehensiveness: see e. g. the Convention on the Rights of the Child (583), the Ottawa Convention on Anti-Personnel Mines (502); and the Arhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (722). 212 See e. g. the preambular recitals to Human Rights Council Resolution 22/22, which total 1,063 words – i. e. almost as much as the Genocide Convention in its entirety.

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the text of the convention’.213 As eventually agreed, the Preamble is neither long, and it obscures little. However, appropriately for a convention against genocide, it is not ‘unambitious’ either.214 Its three recitals run as follows: ‘The Contracting Parties, Having considered the declaration made by the General Assembly of the United Nations in its resolution 96 (I) dated 11 December 1946 that genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world, Recognizing that at all periods of history genocide has inflicted great losses on humanity, and Being convinced that, in order to liberate mankind from such an odious scourge, international co-operation is required, Have agreed as follows …’

While being succinct, the Preamble follows the standard ‘preambular style’ for treaties elaborated within the United Nations (‘The Contracting/States Parties, … Have agreed as follows…’). Like most other preambles, it does not impose any enforceable obligations: it is ‘binding in character…, [but] does not contain … directly operative provisions’.215 Its chief legal relevance is that, as part of the treaty context, and by identifying its object and purpose, the Preamble can aid the interpretation of the treaty.216 52 From the beginning of the drafting it was clear that the Convention would open with a Preamble. Over the course of the drafting process, the preambular text was progressively condensed, partly because aspects of it were moved into Article I,217 and partly because a number of proposed recitals met with opposition.218 The Preamble to the Secretariat Draft, like the eventual text, condemned genocide, which it described in outline as the ‘intentional destruction of a group of human beings’ and which it declared to be a crime (albeit one ‘against the Law of Nations’). It was formulated perhaps more emphatically, appealing to the ‘solidarity of all members of the international community’ who were to prevent and punish genocide, and proclaiming that genocide ‘defies universal conscience, inflicts irreparable loss on humanity by depriving it of the cultural and other contributions of the group so destroyed, and is in violent contradiction with the spirit and aims of the United Nations’.219 The Ad Hoc Committee draft suppressed references to the ‘cultural’ impact of genocide (as, by then, the notion of ‘cultural genocide’ had become controversial), it modified the condemnatory language (‘a grave crime against mankind which is contrary to the spirit and aim of the United Nations and which the civilized world condemns’), but it kept the reference to the need for prevention and punishment.220 Unlike the 51

213

UN Doc. A/C.6/SR.67, 44. Nor is it ‘pointless’, as Drost asserts (Drost, Genocide, 119). 215 Fitzmaurice, BYIL 33 (1957), 229. 216 See supra, mns 32–3. 217 Article I, mns 6–8. 218 Infra, mn. 53. 219 In the view of the United States, this draft preamble was ‘objectionable for the reasons that it is wordy, and that it contains material of a substantive character which should be treated of in the body of the convention’ (UN Doc. A/401, 1). Both criticisms were accommodated in the further course of the drafting. 220 The Ad Hoc Committee Report explained that ‘crime against mankind’ was chosen to mark a difference from ‘crimes against humanity’ (favoured by the French delegation); and provides detail on a number of unsuccessful proposals, submitted by the Soviet Union, which would have underlined out the link between genocide and fascism as well as the need for action against preparatory acts: see UN Doc. E/794, 6–10. 214

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Secretariat Draft, it expressly linked the new Convention to ‘recent instances of genocide’ and to the Nuremberg judgment.221 In the Sixth Committee, which discussed the Preamble only after having finalised 53 the substantive provisions, the drafters decided that references to the duty to prevent and punish genocide would better be placed in an operative provision, and ‘shifted’ them to Article I.222 This removed a central pillar of the previous draft text and what remained (notably the reference to Nuremberg) was controversial, and considered by many to qualify the particular nature of genocide. As a consequence, the Sixth Committee delegates replaced the previous draft with a ‘new text, which was widely divergent both in substance and in form’.223 This new text was essentially contained in a Venezuelan amendment, which, but for minor changes, was identical to the eventual text. It no longer contained the reference to the Nuremberg Tribunal, whose ‘Judgment would not be used as a basis for the system which was to be established by the convention on genocide’224 and was considered to be ‘brief and very much to the point’.225 Instead, GA Res. 96(I) was expressly mentioned, although – deliberately226 – only by means of a general reference, as the Convention was based on a more restricted the concept of genocide than the General Assembly resolution.227 Instead of ‘recent instances of genocide’, a much wider perspective on genocide was adopted: while the treaty was a new one, the crime had been present during ‘all periods of history’.228 This wider perspective was maintained against stiff opposition notably from the Soviet Union, which – until the final plenary session of the General Assembly immediately preceding the adoption of the Convention – sought to include a reference to fascist crimes.229 In the eventual text, the actual condemnation of the crime is put in more 54 succinct, but no less forceful, terms than in previous drafts: instead of ‘a crime against mankind’ (or against ‘the Law of Nations’), genocide was ‘a crime under international law’; this was in line with Article I (which uses the same wording), 221 To avoid misunderstandings, the draft clarified that the Nuremberg Tribunal had ‘punished under a different legal description certain persons who had committed acts similar to those which the present Convention aims at punishing’: see UN Doc. E/794, 9. 222 The Belgian delegate, Mr. Kaeckenbeeck, put it rather clearly: in his view, it was ‘the fundamental purpose of a convention to create an obligation’; therefore ‘it was preferable that the undertaking to prevent and suppress the crime of genocide which appeared at the end of the preamble, should constitute the text of article I of the convention’, UN Doc. A/C.6/SR.67, 38 (Kaeckenbeeck). This made Article I much less ‘preambular’ and enabled it to become a key operative provision. On the drafting process see Article I, mns 7–8. 223 Drost, Genocide, 74. 224 UN Doc. A/C.6/SR.110, 505 (Mr. Pe ´rez Peroso). 225 UN Doc. A/C.6/SR.110, 506 (Mr. Maktos). 226 See Robinson, Genocide Convention, 54. 227 Notably by protecting a more narrowly defined circle of groups and by no longer endorsing the notion of ‘cultural genocide’ as a separate category. For an account of the drafting history (in which the questions played an important role) see supra, mns 15, 19, 21–23. 228 Subsequently, Sartre would famously observe that ‘the fact of genocide is as old as humanity’ (in New Left Review I/48 (1968)). 229 See e. g. UN Doc. A/766 (suggesting the inclusion of a reference to ‘recent events [that] have shown that the crime of genocide is organically bound up with fascism-nazism and other similar race ‘theories’ which propagate racial and national hatred, the domination of the so-called ‘higher’ races and the extermination of the so-called ‘lower’ races’); and see UN Doc. A/C.6/PV.178 and 179.

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Introduction

54–57

and adopted a more ‘legal’ tone. But it is the third recital that expresses the central aims of the Convention most powerfully: State parties sought to ‘liberate mankind from th[e] odious scourge [of genocide]’ and for that purpose agreed to cooperate. This in fact seems to be the essential message of the Convention: from the beginning, the Convention was designed to be an instrument for the comprehensive abolition of genocide. In line with this, Article I – changed from a merely ‘preambular’ to an essential provision – expressly imposes upon states legal duties to prevent and punish genocide. Article IV unequivocally requires that ‘[p]ersons committing genocide or any of the other acts enumerated in article III shall be punished’. And Article IX envisages inter-state proceedings before the ICJ, including in matters of state responsibility for genocide. 55 Given the scope of these provisions, it is inaccurate to simply portray the Convention as an instrument for inter-state cooperation in criminal law matters. A range of its provisions clearly go beyond this. The third preambular recital – expressing the drafters’ conviction that through international cooperation mankind could be liberated from the odious scourge of genocide – encapsulates the Convention’s ambitious normative programme. Expressing an important goal of the treaty, it can help elucidate ‘the ordinary meaning to be given to the terms of the treaty … in the light of [the treaty’s] object and purpose’,230 and thus contribute to the process of treaty interpretation.

G. Concluding observations ‘There can be no more important issue, and no more binding obligation, than the prevention of genocide.’231 Few would disagree openly with Kofi Annan’s statement – in fact most would openly endorse it. Its implementation has been a major challenge, though, as states and international organisations have struggled to live up to their ‘most binding obligation’. This was so prior to the adoption of the Genocide Convention, and it has remained so since. Writing in 1978, Special Rapporteur Ruhashyankiko struck a decidedly sceptical note in his assessment of the Genocide Convention, which had ‘not been an obstacle to the perpetration of this crime’ and ‘can only be considered a point of departure in the adoption of effective international measures to prevent and punish genocide’.232 Since then, the Convention has not been an ‘obstacle’ to the genocidal acts perpetrated in Rwanda and Srebrenica. But perhaps ‘collective shame’ – felt by states and international organisations alike, at their unwillingness to act swiftly to prevent genocide in the last decade of the ‘century of genocide’233 – has been a force for change. 57 That the international legal regime against genocide has undergone change, and been ‘energized’,234 seems beyond doubt: the crime is now being prosecuted, both nationally and internationally; new response mechanisms are being developed or mooted; early warning has become a priority – and all this while the debate about usefulness of singling out genocide (which, it needs to be reiterated, is a healthy one that must be had) continues. For the most part, the reinvigoration of the 56

230

See Article 31 para. 1 VCLT. Annan, Stockholm Proposals, 1. 232 Ruhashyankiko Report, para. 440. 233 See the title of Totten’s and Parsons’ collection: ‘Century of Genocide’. 234 See Lippmann, ArizonaJICL 15 (1998), 506. 231

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Introduction

international regime against genocide has been due to ‘developments outside the contours of the Convention’.235 However, there are signs that the Convention, too, is being ‘energised’. International criminal tribunals have applied what are, by origin, ‘conventional’ norms (if in another, statutory, guise). In its seminal judgment in the Bosnian Genocide case, the International Court of Justice has begun to unfold the normative potential of Article I. And at the domestic level – partly due to the Rome Statute ratification process, partly on their own initiative – states across the globe have reinforced legislation against genocide, thus complying with their conventional obligation set out in Article V. Whether all this would be enough – to take up Mr. Ruhashyankiko’s concern236 – for international law today to be an ‘obstacle’ to genocide, is uncertain. But the energised regime against genocide of today is more adequate and if states and international organisations are willing to honour their obligations, international law facilitates timely responses. If the energised international regime against genocide comprises manifold legal 58 rules, the Convention remains its cornerstone. Itself revived, it has been a catalyst for initiatives such as ‘R2P’ or the gradual realisation of a system of international criminal justice. As noted by Shany (whose remark bears repeating), ‘the high rhetoric used in the Convention [has] conferred legitimacy’237 on the subsequent development of anti-genocide laws ‘outside the contours of the Convention’. These subsequent developments help realise the Convention’s normative programme; and even where they overshadow it, they draw on normative foundations laid in 1948. For the last 65 years, the Convention has been a catalyst for change and a major international treaty in its own right. Each of these aspects is important; taken together, they justify the Convention being called an ‘epoch-making’238 instrument. Its provisions deserve careful analysis. 235

See Lippmann, ArizonaJICL 15 (1998), 506. Ruhashyankiko Report, para. 440. 237 Shany, in: Gaeta, Genocide Convention, 25. See supra, mn. 28. 238 See the closing remarks, immediately following the adoption of the Convention, by the President of the General Assembly, Herbert Vere Evatt: UN Doc. A/PV.179, 851. 236

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Article I 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. Table of Contents: mn. A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 B. Drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 C. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 I. Genocide as a crime under international law . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 1. Criminalising genocide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 2. ‘in time of peace or in time of war’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 II. The obligations of treaty parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 1. The obligatory character of Article I (‘undertake to’) . . . . . . . . . . . . . . . 20 2. Legal obligations imposed by Article I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 a. The duty to punish genocide. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 b. The duty to prevent genocide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 aa. General considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 bb. Activating the duty to prevent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 (1) The geographical dimension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 (2) The temporal dimension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 (3) The substantive dimension. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 cc. The content of the duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 dd. Interim conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 c. The duty not to commit genocide. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 aa. General considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 bb. The existence of a treaty-based duty not to commit genocide 56 (1) Textual arguments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 (2) Context. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 (3) Purpose; subsequent practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 (4) Implications: a duality of responsibilities . . . . . . . . . . . . . . . . . . . 66 cc. The scope of the duty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 (1) Substantive scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 (2) Territorial scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 (3) Attribution of conduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 d. Interim conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 3. Consequences of breaching Article I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 a. Consequences of wrongful conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 b. Implementing responsibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 III. ‘The Contracting Parties confirm…’...................................... 98 D. Concluding Observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102

A. Introduction Article I formulates crucial aspects of the international legal regime against genocide. It 1 declares genocide to be a ‘crime under international law’. It notes that this characterisation does not depend on a link with armed conflict (‘committed in time of peace or in time of war’). It states that parties ‘undertake to prevent and punish’ genocide. It is formulated in declaratory language (‘confirm’), suggesting continuity with the pre-conventional law against genocide. All this is essential to an understanding of the Convention’s normative programme. Article I is ‘the Convention redux’. Tams

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Article I 2–4 In the framework of the Convention, Article I fulfils two functions. First, it introduces legal propositions that subsequent provisions of the Convention take up and elaborate. Where this is true – as with respect to the duty to punish, but also with respect to the notion of ‘genocide’ – Article I operates by way of renvoi; it needs to be construed in the light of subsequent provisions which concretise and clarify its scope. At least initially, this was meant to be the main function of the provision, which, following early drafts, was to appear as the Convention’s preamble. And to this day, commentators suggest that ‘Article I …, as eventually adopted is, in any case, somewhat ‘preambular’’.1 Yet that is only part of the picture. Article I is more than an introductory clause. It also – and this is its second function – is an operative clause with autonomous legal meaning. This second aspect has become much more prominent over time as concepts like the ‘duty to prevent’ have been filled with meaning and as a new, implicit, obligation not to commit genocide has been revealed. From a contemporary perspective, this second, operative, function of Article I is of major relevance. Read properly, the provision imposes upon state parties three essential obligations: a duty to prevent genocide, a duty to punish its perpetrators, and a duty of states not to commit it, each coming with its own set of interpretative challenges. 3 None of this was fully appreciated during the debates preceding the adoption of the Convention. The travaux – as one commentator has noted perceptively – ‘offe[r] a sense of the heat of the debate [but] fail to shed light’ on many interpretative issues.2 Developments since 1948, accelerating during the past two decades, have brought such interpretive issues into focus. They illustrate the potential for a treaty clause to be construed dynamically and to acquire meaning that was not obvious at the time of drafting.3 The evolutive interpretation of Article I – which like similar processes has been contested and controversial – in turn has major implications for the Convention as a whole. It means that most inter-state disputes about the Genocide Convention can be framed as disputes about the interpretation and application of Article I. If state parties so desire, these disputes can be submitted to the International Court of Justice for decisions pursuant to Article IX of the Convention.4 And irrespective of the modality of dispute resolution, disputes about the interpretation and application of Article I raise complex questions of state responsibility for genocide, which implicate the general framework of responsibility developed by the UN International Law Commission.5 4 The following sections take account of both functions of Article I – its introductory and operative dimensions. They clarify that ‘from a structural perspective, 2

1

Schabas, Genocide in Int’l Law (1st ed.), 71. Ben-Naftali, in: Gaeta, Genocide Convention, 30. While Ben-Naftali’s comment relates to the scope of the duty to prevent genocide, it can be generalised. 3 For general perspectives on dynamic and evolutive treaty interpretation see Introduction, mns 29–38; and further Do¨rr, in: Do¨rr/Schmalenbach, VCLT Commentary, Article 31, mns 23–38. As Do¨rr observes (at mn. 28), Article 31 VCLT (or its customary equivalent) recognise the existence of ‘dynamic means of interpretation’. Some of the methods provided for in Art 31 are per se dynamic, such as subsequent agreements (para 3 lit a) or subsequent practice (para 3 lit b)’. As is shown below, these indeed – alongside a new perception of systematic and teleological arguments – have driven the expansive reading of Article I. 4 See Article IX for analysis and comment. The interrelationship between Articles I and IX is briefly addressed infra, mn. 60. 5 See infra, mns 83–97. 2

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4–7

Article I

Article I … serves as both a source [of obligations] and an ‘umbrella’ for … other provisions [of the Convention]’, and trace the transformation of a apparently preambular provision into a fully-fledged treaty clause imposing central obligations.

B. Drafting history Article I has its roots in GA Resolution 96 (I), which declared ‘[t]he punishment 5 of the crime of genocide [to be] a matter of international concern’, affirmed ‘that genocide is a crime under international law which the civilized world condemns and for the commission of which principals and accomplices … are punishable’ and invited ‘Member States to enact the necessary legislation for the prevention and punishment of this crime’.6 Although not legally binding, this foreshadowed Article I’s criminalisation of genocide (which entailed the need to punish perpetrators) and referred to necessary national legislation covering punishment and prevention. The Secretariat Draft took up and gave legal substance to these concerns but 6 formulated them in the Preamble rather than in an operative provision: ‘The High Contracting Parties proclaim that Genocide … is in violent contradiction with the spirit and aims of the United Nations. … They proclaim that the acts of genocide defined by the present Convention are crimes against the Law of Nations, and that the fundamental exigencies of civilization, international order and peace require their prevention and punishment. They pledge themselves to prevent and to repress such acts wherever they may occur.’7

This could be seen as a move towards recognising the twin duties of prevention and punishment. However, their positioning in the Preamble suggested that prevention and punishment were not to be seen as free-standing obligations under the Convention. The Ad Hoc Committee continued to grapple with problems of positioning. It 7 decided to move aspects of the Secretariat Draft Preamble into ‘a separate Article in order to give more weight to the essential ideas to which it gives expression’. Yet perhaps Article I of the Ad Hoc Committee text took up the wrong aspects, namely those that did not lend themselves to being formulated in an operative clause. It stipulated that ‘[g]enocide is a crime under international law whether committed in time of peace or in time of war’; while references to prevention and punishment remained in the revised Preamble.8 Draft article I – taking up a suggestion by the Secretariat9 – thus affirmed the criminal nature of genocide in a ‘proper’ treaty clause and also clarified that genocide could not only be committed in wartime and

6

GA Res. 96(I); and further Robinson, Genocide Convention, 17–8 and 121. UN Doc. E/447, 5. 8 See Ad Hoc Committee Draft, Preamble (‘convinced that the prevention and punishment of genocide requires international co-operation; hereby agree to prevent and punish the crime of genocide as hereinafter provided’). 9 See Note by the Secretariat on ‘Relations between the Convention on Genocide on the one Hand and the Formulation of the Nurnberg Principles and the Preparation of a Draft Code of Offences against Peace and Security on the Other’, UN Doc. E/AC.25/3, chapter II: ‘The committee will not doubt consider it expedient to insert a clause, either in the preamble or the body of the convention, implying that genocide is already a crime under general international law.’ 7

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Article I 7–9 thus broke the nexus with armed conflict.10 During the debates the Committee – by a clear majority of six votes to one – also defeated a French proposal, which would have described genocide as a ‘crime against humanity’.11 Notwithstanding these clarifications, the provision seemed to lack operational relevance. Delegates from the Soviet Union and Venezuela questioned whether it ought not to be merged with the Preamble, and the Committee report underlined the ‘preliminary’ character of the provision.12 8 The key decisions informing Article I in its eventual form were taken during the debates in the Sixth Committee. During the 67th and 68th meetings, most representatives felt the present draft to be (as Mr. de Beus from the Netherlands put it rather politely) ‘not entirely satisfactory’.13 Many speakers, echoing comments made by the Soviet and Venezuelan members of the Ad Hoc Committee, found the provision to be superfluous or ‘purely declaratory’14 and moved it be merged with the Preamble or removed altogether.15 Others felt there was merit in keeping statements about the criminal character of genocide in an operative provision, arguing (perhaps not entirely accurately) that ‘if … inserted in the preamble, [they] would have no legal value.’16 9 A Belgian proposal added a new twist and shaped the debate: according to it, it was ‘the fundamental purpose of a convention to create an obligation’; hence ‘it was preferable that the undertaking to prevent and suppress the crime of genocide which appeared at the end of the preamble, should constitute the text of article I of the convention.’17 This was warmly received18 – but it also meant that the text of the provision had become less ‘preambular’ in nature and could no longer be discarded as ‘purely declaratory’. In fact, as the Belgian representative noted in a subsequent intervention, his ‘proposal was to substitute for a purely declaratory statement a solemn commitment, of practical import, to prevent and suppress the crime.’19 A Dutch proposal paved the way towards the eventual compromise. It retained aspects of the Ad Hoc Committee draft and – taking up the Belgian proposal – added language on prevention and punishment: 10 This marked a move away from the approach followed by the Nuremburg and Tokyo tribunals, which could only punish crimes against humanity if committed in execution of, or in preparation for, an aggressive war. 11 UN Doc. E/794, 11. This was taken up in the French amendment submitted as UN Doc. A/ C.6/211. 12 UN Doc. E/794, 11. During the debates, the provision was referred to as the ‘Preliminary Article’, later ‘Article 1’: see e. g. UN Doc. E/AC.25/SR.24; and similarly UN Doc. E/AC.25/W.1/ Add. 3, 8. 13 UN Doc. A/C.6/SR.68, 44 (Mr. de Beus). 14 See UN Doc. A/C.6/SR.67, 38 (Mr. Amado). 15 See e. g. (with variations) the statements by Kaeckenbeeck (Belgium), Amado (Brasil), Abdoh (Iran), Pe´rez Peroso (Venezuela), UN Doc. A/C.6/SR.67, paras 37–9; as well as de Beus (Netherlands), Tarazi (Syria) and Zourek (Czechoslovakia), all in UN Doc. A/C.6/SR.68, paras 44–7. 16 UN Doc. A/C.6/SR.67, 41 (Mr. Noriega). For similar statements see Bustos Fierro, Manini y Rios, Raafat, Demesmin (ibid., paras 40–1). 17 UN Doc. A/C.6/SR.67, 38 (Mr. Kaeckenbeeck); as well as UN Doc. A/C.6/217. The wording suggested was as follows: ‘The High Contracting Parties hereby undertake to prevent and repress the crime of genocide as defined in the present Convention’. 18 See UN Doc. A/C.6/SR.67, 38–9 (statements by Mr. Abdoh and Mr. Amado). Proposals to retain a revised version of Article I also ‘incorporated’ the requirements of prevention and punishment: see e. g. statements by Mr. Bustos Fierro and Mr. Manini y Rios (ibid., 41). 19 UN Doc. A/C.6/SR.67, 44 (Mr. Kaeckenbeeck).

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9–12

Article I

‘The High Contracting Parties reaffirm that genocide is a crime under international law, which they undertake to prevent and to punish, in accordance with the following articles.’20

This was only marginally modified before the final vote. Following interventions 10 by various representatives, the clarificatory reference that genocide could be committed in times of war and peace was re-instated.21 A suggestion that would have seen ‘is’ replace ‘reafirm’ was briefly considered before ‘confirm’ was agreed on.22 And finally, more importantly, the words ‘in accordance with the following articles’ were dropped23 – seemingly in an attempt to increase the ‘lucidity’ of the text,24 but crucially suggesting that Article I had an autonomous legal relevance, irrespective of the rest of the Convention.25 Thus modified, Article I was accepted by a large majority of 37 votes to 3, with 2 abstentions. As is clear from the foregoing summary, debates centred on whether a clause like 11 Article I was necessary and where it should be positioned. By contrast, there was hardly any debate on what precisely the provision – and notably the duties to prevent and punish genocide – entailed: the relevant language was added at too late a stage, following the Belgian proposal in the Sixth Committee, to be debated in earnest. As regards the duty to punish, the Soviet representative did stress that this was taken up by draft article IV (the equivalent to Article III as eventually adopted), which ‘fully covered the point’;26 but no real debate ensued. On the scope of the duty to prevent, the travaux are completely silent. Finally, the travaux at best allow speculation as to what the drafters considered to be appropriate remedies for breaches of Article I. A United Kingdom amendment to the Ad Hoc Committee draft would have clarified that genocide ‘shall be considered as a violation of the present Convention’.27 Just as similar proposals aimed to spell out the consequences of state responsibility for breaches of the Convention,28 this received a lukewarm response. Whilst welcomed by the United States,29 the Netherlands expressed its disagreement, which felt it was wrong to ‘stat[e] in the text that the committing of an act of genocide would be a breach of the convention. A convention could be violated only by those who were signatories to it, but, as individuals could also commit genocide, it would be incorrect to state that an individual had violated the convention because he had committed an act of genocide.’30

Since the Dutch proposal was to dominate debates, the United Kingdom proposal 12 was not voted upon; however, the British representative reiterated his view that ‘the article should provide that States which signed the convention would bind themselves not to commit the crime, and to prevent and punish any violations.’31 20

UN Doc. A/C.6/SR.68, 45 (Mr. de Beus); as well as UN Doc. A/C.6/220. See UN Doc. A/C.6/SR.68, 49–50, 53 (statements by Sir Hartley Shawcross, Mr. Bartos, Mr. Morozov); and eventually proposed as a United Kingdom amendment to the Dutch proposal. 22 See UN Doc. A/C.6/SR.68, 52 (statements by Mr. Kaeckenbeeck and Mr. de Beus). 23 See the exchange between Mr. Federspiel and Mr. de Beus (UN Doc. A/C.6/SR.68, 47, 49–50). 24 See UN Doc. A/C.6/SR.68, 47 (Mr. Federspiel). 25 For further comment see infra, mns 31–3. 26 UN Doc. A/C.6/SR.68, 49 (Mr. Morozov). 27 UN Doc. A/C.6/SR.67, 39–40 (Sir Hartley Shawcross). 28 See e. g. Article IX, mn. 14. 29 UN Doc. A/C.6/SR.67, 43 (Mr. Maktos). 30 UN Doc. A/C.6/SR.68, 45 (Mr. de Beus). 31 UN Doc. A/C.6/SR.68, 48 (Sir Hartley Shawcross). 21

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Article I 12–14 Few of the other drafters expressly agreed that by virtue of Article I, state parties ‘would bind themselves not to commit the crime’ – but during the Sixth Committee debates on Article I few expressly disagreed with the proposal either. The matter (perhaps curiously) was simply not seriously discussed; debates focused on the responsibility of individuals committing the crime. Hence GA Res. 96(I) had declared genocide to be a crime ‘for the commission of which principals and accomplices are punishable’, without saying a word about the responsibility of states.32 Almost five decades after its elaboration, two judges of the International Court of Justice were to note that ‘[i]n substance, the Convention remains an instrument relating to the criminal responsibility of individuals’ – but not of states.33 However, there are at least hints that bodies involved in the drafting did consider the consequences of a state’s involvement in, or commission of, genocide. Most prominently, this was stated in GA Res. 180(II), by which the UN General Assembly requested the Economic and Social Council to submit a report and a draft convention on genocide to the Third Session of the Assembly. In it, the Assembly declared genocide to be ‘an international crime entailing national and international responsibility on the part of individuals and States’.34 Yet the matter was not elaborated upon and it was to take decades before the debate about state responsibility for acts of genocide would be tested in court.35

C. Interpretation 13 Article I is a dense treaty norm, one of those provision in which nearly every word matters. (In fact, even words read into it matter a great deal.) The drafting history provides only an incomplete guide to the various problems of interpretation; however, it helps clarify the structure of the norm, which in turn can help structure the subsequent analysis. Focusing on aspects included already in the Ad Hoc Committee draft, section C.I. immediately below addresses the implications of the criminalisation of genocide. Section C.II. seeks to shed light on the crucial additions proposed during the Sixth Committee debates, viz. the obligations imposed by Article I; this section also briefly summarises the legal regime governing consequences of breaches. The final section C.III. assesses the meaning of the term ‘confirm’, which signals the drafters’ intention to recognise an already existing crime and which raises more general questions relating to Article I’s scope ratione temporis. As indeed, ‘the fundamental purpose of a convention [is] to create an obligation’,36 the second section is by far the most detailed. I. Genocide as a crime under international law 14 Article I is remarkable first and foremost for its outright condemnation of genocide. State parties declare – in fact ‘confirm’37 – it to be ‘a crime under 32 GA Res. 96(I). A British proposal to rephrase this to run ‘for the commission of which principals and accessories, as well as States, are individually responsible’ was not taken up (see UN Doc. A/C.6/83; emphasis added). 33 Joint Declaration of Judges Shi and Vereshchetin, Bosnian Genocide case (preliminary objections), ICJ Reports 1996, 631. 34 GA Res. 180(II). 35 For details see infra, mns 56–67. 36 UN Doc. A/C.6/SR.67, 38 (Mr. Kaeckenbeeck). 37 Infra, mns 98–101.

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international law’. This essential statement informs much of what follows: because it is a crime under international law, state parties undertake to prevent it and punish its perpetrators (as per Article I), to pass criminal legislation (Article V), to disapply defences otherwise available (Article IV, VII); because it is a crime, UN action is called for (Article VIII), etc. Seen in that light, Article I’s condemnation of genocide as a crime is explanatory rather than operational. Still, in two respects, the statement has autonomous legal relevance. 1. Criminalising genocide First, as a ‘crime under international law’, genocide is punishable irrespective of 15 any domestic criminal law on the matter. Pursuant to Article V, state parties to the Convention are of course required ‘to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III’.38 Yet even where they fail in that duty, genocide remains a crime and can be punished as such. The point of principle was established in the jurisprudence of the Nuremberg IMT, which expressly stated that ‘individuals can be punished for violations of international law.’39 The point was elaborated in Principle I of the Nuremberg Principles, pursuant to which ‘[a]ny person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.’40 As the commentary to that provision noted, ‘[t]he general rule underlying Principle I is that international law may impose duties on individuals directly without any interposition of internal law.’41 It was taken up in subsequent codification attempts, of which Article 1 para. 2 of the ILC’s Draft Code of Crimes against the Peace and Security of Mankind, finalised in 1996, is particularly instructive: ‘Crimes against the peace and security of mankind are crimes under international law and punishable as such, whether or not they are punishable under national law.’42

It is implicit in these statements that, in criminalising genocide, international law 16 applies directly to individuals; it is autonomous of any domestic legislation. This has informed subsequent initiatives to set up international tribunals competent to try individuals for acts of genocide or other acts mentioned in Article III, notably under the Rome Statute.43 It is also argued (though not pursued expressly in the Conven-

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For examples of implementation provisions see Annex 5. IMT, Trial of the Major War Criminals before the International Military Tribunal: Nuremberg, vol. 1 (1947), 53. 40 ILC, Principles of International Law Recognized in the Charter of the Nu ¨ rnberg Tribunal and in the Judgment of the Tribunal, YbILC 1950 II, 374 (Principle I). Principle II went on to state: ‘The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law’ (ibid.). 41 YbILC 1950, vol. II, 374 (para. 99). 42 YbILC 1996, vol. II/2, 17. In para. 9 of its explanatory commentary, the Commission correctly spoke of the ‘autonomy of international law in the criminal characterization [of crimes under international law]’ (YbILC 1996, vol. II/2, 18). 43 See Rome Statute, Article 5 para. 1 lit. (a) and Article 6. 39

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Article I 16–20 tion) that because it is a crime under international law, genocide can be prosecuted by foreign domestic courts on the basis of universal jurisdiction.44 2. ‘in time of peace or in time of war’ Second, by clarifying that genocide is a crime, whether committed ‘in time of peace or in time of war’, Article I takes up one particular aspect of the definition of genocide. In unequivocal terms, it clarifies that no nexus with war or armed conflict is required. In line with that, Article II, defining genocide, makes no reference to hostilities. At the time of the drafting, this marked a crucial advance, as other crimes under international law (such as war crimes, but also crimes against humanity according to a view widely held at the time45) were only punishable if committed during armed conflict.46 As recognised and confirmed in the Convention, genocide was to be a self-standing crime, in many respects more specific than other crimes, but de-coupled from armed conflict. 18 From a contemporary perspective, it is clear that the ‘de-coupling’ has been accepted. While armed conflict may be a contributing factor, it is not an element of the definition of genocide. Subsequent texts have not re-introduced a ‘war nexus’; if anything, the link between armed conflict and other international crimes has become more tenuous. In that respect, Article I has been a catalyst of the emancipation of international criminal law from armed conflict. 17

II. The obligations of treaty parties 19

Article I does not merely criminalise genocide, but translates this into specific obligations. More particularly, it states that treaty parties ‘undertake to prevent and to punish’ genocide. Unfortunately, the language of Article I lacks precision. What precisely does it mean for parties to ‘undertake’ certain obligations with respect to genocide? What is meant by ‘prevention’ and ‘punishment’? Fundamentally, if Article I requires active conduct (in other words positive action) against genocide (prevention and punishment), should it not also be read to imply a duty not to commit genocide in the first place? And finally, what are the consequences of a party’s failure to comply with any of these obligations? The relevance of Article I depends upon the answers to these questions. 1. The obligatory character of Article I (‘undertake to’)

20

Article I does not state that parties ‘must’ or ‘shall’ prevent and punish genocide, but that they ‘undertake to’ do so. This choice of language – together with the programmatic character of Article I more generally, and its origin as a draft preambular provision – could give rise to concerns: does the provision really impose obligations proper, or is merely hortatory? A brief analysis is sufficient to dispel 44 See e. g. Principle 1(2) of the ‘Princeton Principles’. For more on universal jurisdiction and the domestic prosecution of genocide see Article VI, mns 45–52. 45 See e. g. Article 6(c) of the Charter of the IMT, which envisaged the prosecution of crimes against humanity only ‘in connection with any crime within the jurisdiction of the Tribunal’ (i. e. war crimes and crimes against peace – both presupposing armed conflict). 46 A point made by the Commission of Experts on Rwanda: see ‘Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 935 (1994)’, Annex to UN Doc. S/ 1995/1405, para. 150.

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these concerns. Dictionaries render ‘undertake to’ as ‘commit oneself to a responsibility’ or ‘promise to do a particular thing’, thus underlining the binding character of the undertaking.47 The drafting history suggests that the Belgian proposal expressly referring to prevention and punishment ‘was to substitute for a purely declaratory statement a solemn commitment, of practical import, to prevent and suppress the crime.’48 It is in the same, binding, sense that the term ‘undertake to’ is used in treaty practice, including in important human rights treaties concluded after the Genocide Convention. In the Bosnian Genocide case, the ICJ addressed the matter in the following terms: ‘The ordinary meaning of the word ‘undertake’ is to give a formal promise, to bind or engage oneself, to give a pledge or promise, to agree, to accept an obligation. It is a word regularly used in treaties setting out the obligations of the Contracting Parties (see, for example, International Convention on the Elimination of All Forms of Racial Discrimination (7 March 1966), Art. 2, para. 1; International Covenant on Civil and Political Rights (16 December 1966), Art. 2, para. 1, and 3, for example). It is not merely hortatory or purposive.’49

All this suggests that Article I imposes upon parties legal obligations relating 21 genocide. With respect to the duty to punish, the matter has not seriously been questioned: as will be discussed below, the real debate goes to the scope of the duty.50 By contrast, there existed, at least for a while, doubts as to the legal character of the obligation to prevent genocide, which – notwithstanding the wording of Article I – simply seemed not to matter very much in practice. Until the 1990s, UN documents rarely referred to a duty to prevent,51 and neither did prevention feature in debates during international crises potentially involving acts or threats of genocide.52 As Ben-Naftali states, for a considerable while the duty to prevent remained ‘morally pregnant but … normatively empty’.53 In his dissent in the Bosnian Genocide case, judge ad hoc Krecˇa added a more fundamental argument. To him, to recognise a duty to prevent would run counter to the character of the Convention as a criminal law instrument: ‘the prevention of a crime in terms of the plain and natural meaning of the word ‘prevention’ – an action keeping something from happening or rendering impossible an anticipated genocidal design – is alien to the very nature of criminal law.’54

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See e. g. New Oxford Dictionary (entry ‘undertake’). See UN Doc. A/C.6/SR.67, 38 (Mr. Kaeckenbeeck) and see supra, mn. 9. 49 ICJ Reports 2007, 43, para. 162. 50 Infra, mns 24–30. 51 Ben-Naftali, in: Gaeta, Genocide Convention, 33–4. The Whitaker Report (paras 83–4) assesses some of the instances. 52 In his separate opinion in the (second) provisional measures order in the Bosnian Genocide case, judge ad hoc Lauterpacht tersely referred to the ‘limited reaction’ of states to acts of genocide, which in his view argued for the ‘permissibility of inactivity’ in the face of genocide (ICJ Reports 1993, 407, 444–5). 53 Ben-Naftali, in: Gaeta, Genocide Convention, 33. See further Quigley, Genocide Convention, xiv; and – prior to the Court’s 2007 merits judgment in the Bosnian Genocide case – Milanovic, EJIL 17 (2006), 571: ‘Despite numerous calls for a robust regime of genocide prevention, it does not seem that there is such a sweeping duty in the lex lata of international law. The Genocide Convention does not contribute anything else in that regard: states have a duty to prevent and punish genocide in exactly the same way as they have to prevent and punish crimes against humanity or other massive human rights violations, however flimsy that duty might be.’ 54 Diss. Op. Krec ˇa, Bosnian Genocide case, ICJ Reports 2007, 43, para. 539. 48

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Article I 21–23 In Judge ad hoc Krecˇa’s view, it followed that ‘[t]he duty to prevent genocide is, in fact, a social, moral, even metaphysical duty, being the goal of social defence action against genocide’55 – but not a legal obligation. 22 Both considerations point to problems of implementation and inform debates about the scope of the duty.56 However, neither can ‘explain away’ the existence of a legal duty to prevent. Absence of practice, even long-standing absence, in itself is not sufficient to suspend or terminate legal obligations.57 As regards Article I, it is moreover of limited relevance because since the 1990 s, the duty to prevent has entered the legal discourse and is now regularly referred to in international documents58 and judicial pronouncements59 – it has been (as one commentator put it) ‘resurrected’.60 Judge ad hoc Krecˇa’s argument is more problematic still, as it rests on two dubious assumptions. Firstly, it considers the Genocide Convention to be only about criminal law (which it is not, as it also envisages inter-state dispute resolution,61 state responsibility for acts of genocide,62 preventative UN action,63 etc.). Secondly, it asserts a clear-cut distinction between criminal law and prevention which flies in the face of the regular imposition under national and international criminal law, of criminal liability for omission.64 In short, there is no reason to move away from the ‘ordinary meaning of the word ‘undertake’’, which denotes a binding obligation in the sense of ‘a formal promise, … a pledge or promise’.65 While the scope of the duty to prevent genocide needs to be carefully assessed, there is little reason to question its legal character. As was noted two decades ago: ‘The statement in Article I … is comprehensive and unqualified. The [provision] establishe[s] two distinct duties: the duty ‘to prevent’ and the duty ‘to punish’.’66

The scope of these legal duties can now be assessed. 2. Legal obligations imposed by Article I 23

The legal obligations imposed upon treaty parties are varied in character. Article I mentions two obligations expressly: parties are required to ‘prevent’ and to ‘punish’ genocide. Both prevention and punishment require active conduct, one aimed at precluding genocide from being committed, the other requiring the imposition of a penalty where genocide has been committed. That both obligations exist is clear; what is less clear is their precise content, notably their scope 55

Diss. Op. Krecˇa, Bosnian Genocide case, ICJ Reports 2007, 43, para. 539. Infra, mns 31–50. 57 Absent any subsequent agreement or general subsequent practice by the parties (as per Article 31 para. 3 VCLT), passivity could only result in the termination of a norm if the rather stringent requirements of desuetude are met. For details see Villiger, Customary Int’l Law and Treaties, 207–24. 58 Early UN documents emphasising the importance of genocide prevention include GA Res. 48/ 88 (1993), GA Res. 49/10 (1994) and GA Res. 50/190 (1995) (all relating to the situation in Bosnia Herzegovina). 59 See notably the various ICJ pronouncements in the Bosnian Genocide case, viz. ICJ Reports 1993, 3; ICJ Reports 1993, 325; ICJ Reports 1996, 595; ICJ Reports 2007, 43. 60 Ben-Naftali, in: Gaeta, Genocide Convention, 35. 61 See Article IX. 62 Infra, mns 83–97. 63 Article VIII. 64 See Berster, IntCrimLRev 10 (2010), 619, with references. 65 ICJ Reports 2007, 43, para. 162. 66 Sep. Op. Lauterpacht, Bosnian Genocide case, ICJ Reports 1993, 407, 443. 56

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ratione materiae and ratione loci. Whether in addition to these two positive obligations, Article I also imposes a negative duty (not mentioned expressly) not to commit genocide remained disputed for a considerable while. All three obligations need to be addressed separately as they give rise to very different problems of interpretation. At the outset, one feature common to all three obligations is worth reiterating: all obligations under Article I relate to genocide as defined in Articles II and III of the Convention; the provision does not apply to other forms of illegal conduct. In this sense, the application of Article I depends on a proper reading of Articles II and III which define the notion of genocide and determines forms of illegal conduct. a. The duty to punish genocide It is convenient to begin with the duty to punish genocide, which raises the 24 fewest problems of interpretation under Article I. In essence, Article I’s recognition of that duty is by way of renvoi: while Article I enshrines the duty, its scope is determined by other provisions of the Convention, notably Articles IV and VI, but also Articles V and VII. Details are explored in the dedicated commentaries to these provisions; for present purposes, all that is required is a brief summary. Five aspects are worth noting. First, the ‘duty to punish’ is shorthand for an obligation to impose criminal 25 sanctions on individuals responsible for acts of genocide or any of the other acts referred to in Article III; it is a duty to punish perpetrators of genocide or any of the other acts mentioned in Article III.67 In postulating such a duty (subject to exceptions), the Convention is in line with a considerable number of other multilateral treaties that rely on repressive criminal sanctions as a means of ensuring a particular normative objective.68 Second, in pursuing this objective, the Convention relies on a rather straightforward 26 strategy. Its focus is on criminal sanctions. This is understandable and in line with the general trend towards state duties to criminalise and punish.69 That said, it is worth noting that while within the framework of the Genocide Convention criminal sanctions are the only form of repression expressly mentioned, more recent treaties regime often go beyond it, for example by envisaging civil proceedings70 (aimed at damages or other non-penal remedies) or by recognising a broader ‘right to a remedy’ encompassing potentially civil and criminal proceedings.71 Moreover, Article I of the 67 As explored infra, mns 61–2, international law notably does not make provision for the punishment of states responsible for genocide: there is as yet no regime of ‘state criminality’. 68 See e. g. Articles 51, 52, 131, 148 of Geneva Conventions I-IV; Article 85 of Additional Protocol I (1977); Article IV lit. (b) of the Apartheid Convention; Arts 6 and 7 of the Forced Disappearances Convention, Article 7 of the Convention against Torture. For comment see e. g. Orentlicher, YaleLJ 100 (1991), 2537; Ambos, AVR 36 (1998), 318. 69 See the references in the previous footnote. 70 See e. g. Article 14, para. 1 of the Convention against Torture, which requires each treaty party to ‘ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible.’ A similar clause is contained in Article 24 of the Convention against Forced Disappearances. For comment see the contributions to Scott, Torture as Tort. 71 See Article 2, para. 3 ICCPR; Article 2 IACHR. In GA Res. 60/147, the UN General Assembly endorsed attempts to spell out (non-binding) ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and

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Article I 26–29 Genocide Convention remains state-centric in that it the duty to impose criminal sanctions is not mirrored by a right of victims to initiate criminal proceedings.72 And finally, Article I does not expressly enshrine a duty to ‘extradite or prosecute’ (aut dedere aut judicare) which after 1948 was to become an essential component of international cooperation, especially in the field of transnational criminal law. These textual shortcomings can to some extent be addressed by a purposive and systematic reading of Articles IV-VI, which impose duties to cooperate towards the prosecution and punishment of ge´nocidaires. However, an express recognition of the aut dedere principle could have rendered such constructions unnecessary.73 27 Third, Article VI envisages two modalities for punishing perpetrators of genocide, national and international criminal justice. As regards the latter, the duty to punish morphs into a duty to cooperate with an ‘international penal tribunal’ where parties ‘have accepted its jurisdiction’. Article VI would cover proceedings before international criminal courts, established since 1948, which are competent to try perpetrators of genocide or any of the other acts mentioned in Article III.74 The precise terms of the duty of cooperation depend on the statutory instruments of the ‘international penal tribunal’.75 28 Fourth, the Convention provides more detail on the scope of the duty to punish perpetrators in national jurisdictions. Article VI qualifies the scope of this duty significantly by introducing a territorial nexus: ‘persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed’. Crucially, this might be construed in a way that no duty exists to punish genocide committed outside a party’s own territory.76 As is explored in the commentary to that provision, the resulting gap in the Convention’s system of protection can however be closed by a proper construction of Article IV, pursuant to which ge´nocidaires ‘shall be punished’ without reservation.77 29 Fifth, while Articles IV and VI are crucial, a number of other provisions are also relevant to assessing the scope of the duty to punish. Article V requires national implementation legislation ‘to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide Serious Violations of International Humanitarian Law’. Pursuant to para. 11 of the Basic Principles, victims rights comprise ‘the following as provided for under international law: (a) Equal and effective access to justice; (b) Adequate, effective and prompt reparation for harm suffered; (c) Access to relevant information concerning violations and reparation mechanisms.’ For a clear analysis see Nowak, in: Liber Amicorum Theo van Boven, 203. 72 Contrast e. g. Articles 12 paras 1 and 18 of the Forced Disappearances Convention (recognising a right to seek an investigation, as well as victims’ and relatives’ rights to have access to information). 73 See Article IV, mns 28–32, Article VI, mns 60–2. 74 As noted by the ICJ in the Bosnian Genocide case, ‘the notion of an ‘international penal tribunal’ within the meaning of Article VI must at least cover all international criminal courts created after the adoption of the Convention (at which date no such court existed) of potentially universal scope, and competent to try the perpetrators of genocide or any of the other acts enumerated in Article III (ICJ Reports 2007, 43, para. 445). 75 Read properly, the scope of the duty to punish (in its form of a duty to cooperate with an international penal tribunal competent to try perpetrators of genocide) thus depends on a double renvoi: to Article VI, and further to the statutory documents of the relevant international tribunal). 76 As noted elsewhere, Article VI does not preclude the exercise of national jurisdiction over genocide committed abroad; however it does not require it. 77 Article IV, mns 28–32.

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or any of the other acts enumerated in article III’. According to Article VII para. 1, genocide must not be qualified as a political offence for the purposes of extradition treaties. Finally, on the institutional plane, Article VIII envisages enforcement action by the United Nations, which, amongst other things, may involve the punishment of ge´nocidaires. The duty to punish in the sense of Article I is specified, defined and circum- 30 scribed by the provisions. It has no autonomous meaning going beyond them; as regards the duty to punish Article I is a purely introductory clause whose scope is determined by Articles IV and VI in particular. b. The duty to prevent genocide aa. General considerations Unlike the duty to punish, the duty to prevent genocide is not elaborated in any 31 detail in the subsequent provisions of the Convention.78 In fact, Article VIII (envisaging UN action ‘for the suppression and prevention of … genocide’), ‘is the only Article in the Convention … which deals with the prevention of that crime’.79 Of course, punishing génocidaires as required by Article VI may have a preventative effect on future perpetrators80 and as some of the duties to punish relate to conduct preceding the actual commission of genocide (such as conspiracy81), the link between prevention and punishment could indeed be said to be ‘nuanced’.82 Yet prevention cannot be reduced to indirect effects of punishing, and to interpret the duty to prevent genocide as an aspect of a duty to punish would run counter to the wording of Article I, which treats them as ‘two distinct duties’.83 The duty to prevent genocide therefore has a separate existence; it is (as the ICJ put it) ‘not absorbed by the obligation to punish’.84 The duty to prevent is not exhausted by Article VIII either. As is explored in the 32 commentary to that provision, Article VIII in the main has an enabling and clarificatory function; it leaves a wide margin of discretion in how to prevent genocide and imposes few strict obligations.85 If the duty to prevent had no meaning beyond Article VIII, it would indeed be ‘normatively empty’.86 It would in fact not be a duty of treaty parties at all, as Article VIII is addressed to the 78 See para. 426 of the ICJ’s judgment in the Bosnian Genocide case: ‘the Convention includes fairly detailed provisions concerning the duty to punish (Articles III to VII), it reverts to the obligation of prevention, stated as a principle in Article I, only in Article VIII’. 79 Ruhashyankiko Report, para. 304. As noted supra (mns 20–2), this has fuelled (unjustified) doubts about its legal nature. 80 This in fact is one of the assumptions of (international) criminal law, clearly brought out e. g. by the fifth preambular recital of the Rome Statute: ‘Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes’. 81 See Article III, mns 23–6. 82 Ben-Naftali, in: Gaeta, Genocide Convention, 29. 83 Sep. Op. Lauterpacht, Bosnian Genocide case, ICJ Reports 1993, 325, 443. 84 Bosnian Genocide case, ICJ Reports 2007, 43, para. 427. In para. 425, the Court speaks of ‘two distinct yet connected obligations’. 85 Article VIII envisages ‘action under the Charter’ by ‘the competent organs of the United Nations … as they consider appropriate for the prevention … of genocide’. The terms ‘as they consider appropriate’ bring out the largely discretionary character of the provision; however, UN organs are at least under a duty to engage with allegations of genocide. For details see Article VIII, mns 14–7. 86 See Ben-Naftali, in: Gaeta, Genocide Convention, 33.

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Article I 32–34 (competent organs of the) United Nations, not to states. For that reason alone, attempts to limit Article I’s duty to prevent to UN action in the sense of Article VIII seem far-fetched.87 Adapting the ICJ’s phrase, one could say that the duty to prevent imposed by Article I is ‘not absorbed by [UN action under Article VIII]’.88 33 As the subsequent provisions of the Genocide Convention say so little on the duty to prevent genocide, its scope must be ascertained through an interpretation of Article I in the light of general rules of interpretation. Unlike the duty to punish (which is specified – and circumscribed – in other provisions89), Article I itself is of decisive relevance for the duty of prevention, there simply exist no ‘implementing provisions’ on which the interpretation could draw; a renvoi is not possible. In light of this, the International Court was correct to emphasise, in the Bosnian Genocide case, that ‘in particular [the] undertaking to prevent’ supports the view that ‘Article I … creates obligations distinct from those which appear in the subsequent Articles.’90 But Article I itself remains fairly vague; it mentions the duty to prevent without saying anything else about it.91 Because this is so, the precise scope of the duty to prevent is difficult to assess. The subsequent considerations reflect this whilst seeking to identify its main structural features. bb. Activating the duty to prevent 34

The duty to prevent genocide does not exist in the abstract. It requires active conduct aimed at precluding the occurrence of a certain result, namely acts of genocide (plus, perhaps, other acts referred to in Article III).92 While it is a permanent obligation requiring vigilance, the duty to prevent is ‘activated’ by threats of genocide: without such a threat, it does not have any meaningful content.93 What is more, like other forms of responsibility by omission, responsibility for failing to prevent a certain result will only arise if the proscribed result (such as acts of genocide, plus possibly other acts referred to in Article III) eventually takes place: ‘a State can be held responsible for breaching the obligation to prevent genocide only if genocide was actually committed’.94 This in fact is in line with the traditional perspective, within the law of state responsibility, on duties of prevention which is reflected in Article 14 para. 3 of the ILC’s Articles on State Responsibility: ‘[t]he 87 For the most ambitious attempt see Judge ad hoc Krec ˇa’s dissent in the Bosnian Genocide case, ICJ Reports 2007, paras 538–51. 88 See Bosnian Genocide case, ICJ Reports 2007, 43, para. 427; and further Gattini, EJIL 18 (2007), 699–700. 89 Supra, mns 24–30. 90 Bosnian Genocide case, ICJ Reports 2007, 43, para. 162. 91 See Schabas, Genocide in Int’l Law (1st ed.), 72: ‘while the final Convention has much to say about punishment of genocide, there is little to suggest what prevention of genocide really means. Certainly, nothing in the debates about Article I provides the slightest clue as to the scope of the obligation to prevent’. See further Sicilianos, in: Ascensio et al., Droit international penal, 119. 92 Problems relating to conspiracy, attempt, incitement and complicity are addressed infra, mn. 42. See also Article III, mns 23 et seq. 93 Gattini, EJIL 18 (2007), 704, makes the point forcefully: ‘If it is true that the duty to prevent a genocide is not temporally limited, and that the states are under a general obligation to do all in their power, through legislative measures or others, to prevent the commission of such acts, it is also true that it is only through some temporally determinable elements, e. g., the presence of a real and serious danger of genocide, that the duty to prevent can be concretized.’ Forlati, PolYIL 31 (2011), 197, speaks of ‘conditions under which the obligation [to prevent genocide] applies’. 94 ICJ Reports 2007, 43, para. 431.

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breach of an international obligation requiring a State to prevent a given event occurs when the event occurs’.95 In the light of these considerations, the scope of Article I’s duty to prevent depends on two questions in particular: what forms of conduct need to be prevented? And which level of ‘threat’ is required for the duty to apply? In answering these questions, it seems convenient to distinguish geographical, temporal and substantive aspects of Article I. (1) The geographical dimension. The first problem concerns the place where 35 acts of genocide threaten to take place. Does Article I oblige state parties to prevent acts of genocide anywhere in the world? Does the duty to prevent only apply to acts of genocide ‘at home’? Or does it mirror approaches under human rights treaties, which regularly can apply extraterritorially where states exercise a certain level of control and influence? Article I does not settle this question; it is silent on the issue. Yet this silence can lead to diverging interpretations. According to the International Court of Justice, it is to be read as a decision against territorial limitation: hence the Court’s succinct observation that ‘the obligation each State … has to prevent … the crime of genocide is not territorially limited by the Convention’.96 But this is not the only possible reading: it would also be plausible to say that, in the absence of an express provision mandating its extraterritorial (let alone global) reach, the ordinary meaning would be to construe the duty to prevent as a territorial obligation – at least if one accepts that obligations under international law apply ‘primarily territorial[ly]’.97 The normative context of Article I is not conclusive either. Supporters of a 36 ‘global’ interpretation, rejecting any territorial limitation, can point to Article VI, which does introduce a territorial limit.98 This suggests that indeed, territorial limitations are not alien to the Convention and that silence can be read as ‘absence of a territorial limitation’. On the other hand, it is worth noting that Article VIII, envisaging UN action for, amongst other things, the prevention of genocide (irrespective of where it threatens to take place), leaves UN organs discretion in tailoring their response. According to judge Tomka (who, it must be said, emphasised the vagueness of Article VIII), this had an impact on the interpretation of Article I’s duty to prevent: ‘[I]f Article VIII does not impose a legal obligation on the competent organs to act, can the obligation of prevention in Article I be interpreted as requiring a State to act outside of its territory in order to prevent or suppress the acts of genocide?’99 When looking to other international treaties, the existence of a global duty to 37 prevent genocide becomes more plausible. As Zimmermann notes, the Inter-American Convention against Forced Disappearances ‘contains a general and geographi95 See YbILC 2001, vol. II/2, 59. Gattini (EJIL 18 (2007), 701–2) discusses alternative constructions, but accepts that Article 14 para. 3 was ‘formulated in unmistakeable terms’ and presented a ‘well-trodden path’. 96 Bosnian Genocide case (preliminary objections), ICJ Reports 1996, 595, para. 31. In 1996, and notwithstanding the territorial nexus apparently provided by Article VI, the Court had said the same about the duty to punish. At the merits stage of the Bosnian Genocide case, it distinguished between the duty to prevent (not territorially limited) and the duty to punish (territorially limited), see ICJ Reports 2007, 43, paras 183–4. 97 As was held by the European Court of Human Rights in the Bankovic ˇ case, para. 59. The acceptance of such a ‘presumption’ has been criticised: see e. g. Milanovic, HRLR 8 (2008), 411. 98 Supra, mn. 28. 99 Sep. Op. Tomka, Bosnian Genocide case, ICJ Reports 2007, 348.

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Article I 37, 38 cally unlimited obligation of contracting parties to cooperate … to prevent the forced disappearance of persons’.100 And, perhaps more importantly, common Article 1 of the four Geneva Conventions – requiring parties to ‘respect and to ensure respect for the … Convention in all circumstances’ – has been interpreted to imply a global obligation to prevent breaches of international humanitarian law.101 In the words of the ICJ’s Wall opinion, Article 1 imposed upon state parties ‘an obligation to ensure that the requirements of the instruments in question are complied with’.102 While treaty practice is heterogeneous,103 the least that can be drawn from these illustrations is that a global duty to prevent is not unheard of – and hence could very well be envisaged for a treaty condemning genocide. Admittedly, this interpretation ‘makes the obligation to prevent genocide vastly different from … obligations … under most human rights treaties’.104 However, this is not determinative: general human rights treaties, after all, do not enshrine an express duty to prevent; their extraterritorial reach needs to be deduced from a much more general obligation to ensure respect for human rights to persons on their territory and/or under their jurisdiction.105 This makes the broader construction of Article I plausible.106 38 The key argument supporting a global construction of the duty to prevent, however, is a purposive one. If the duty to prevent only applied within a state’s territory, or in areas under its jurisdiction, it would not go much beyond a duty of vigilance ‘at home’. It would essentially amount to a duty to monitor acts of private individuals within the reach of a state’s laws and law enforcement bodies. This of course is an important aspect that should not be disregarded. However, as in practice, genocide – like other crimes against international law – ‘typically … presume[s] state participation’, it would not go much beyond a duty not to commit the crime. By contrast, a ‘global’ construction of a duty to prevent is much better able to give effect to the solemn pledge of state parties, set out in the Preamble, ‘to liberate mankind from [the] odious scourge [of genocide]’. No doubt it gives rise to many problems, as the specific content of the duty is difficult to define. But it is an important building block of a regime that takes seriously the ‘humanitarian and civilizing purpose’ of the Genocide Convention.107 In the light of these systematic and purposive arguments, the ICJ, in its merits judgment in the Bosnian Genocide case, was justified to recognise the existence of a legal duty of state parties to prevent genocide irrespective of where it threatens to occur.108 In so doing, the Court clearly adopted a very progressive interpretation and (as has been observed) ‘stretched the interpretation of Article I’;109 however, it did so on the basis of a plausible construction of the provision. 100

Zimmermann, in: Essays Simma, 635 (citing Article 1 lit. c of the Convention). Pictet, Geneva Convention I, Article 1, 26. 102 ICJ Reports 2004, 136, para. 158. 103 Contrast the (geographically) limited duties of prevention under Article 2 of the Convention against Torture and Articles 22, 25 of the (UN) Convention against Forced Disappearances. For comment see Zimmermann, in: Essays Simma, 634-6. 104 Milanovic, EJIL 18 (2007), 685. 105 See e. g. Article 1 ECHR, Article 2 ICCPR. 106 See further Simma, in: Safferling/Conze, The Genocide Convention Sixty Years after its Adoption, 262. 107 See ICJ Reports 1951, 15, 23. 108 ICJ Reports 2007, 43, para. 430. 109 Gattini (EJIL 18 (2007), 699. 101

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(2) The temporal dimension. The second question of interpretation is best seen 39 as a temporal or threshold problem: what is required for the duty to prevent genocide to be activated; when does it require state parties to act? As duties to prevent under international law are a relatively new phenomenon, answers to these questions remain to some extent tentative. However, two basic aspects seem agreed. The first is an objective requirement: there must be a serious risk that acts of 40 genocide will be committed.110 If such acts have taken place already, the duty to prevent remains active as long as further acts threaten to take place. Perhaps needless to say, this means that the duty (which is a duty to prevent the occurrence of genocide after all) requires state parties to act before genocidal violence sets in, or while it is still on-going.111 The key challenge is to define the requirement of a ‘serious risk’. For practical purposes, ‘credibility’ or ‘plausibility’ seem particularly relevant factors. If a would-be perpetrator threatens to commit genocide, that threat must be ‘real’, in other words it must come from a perpetrator able to carry out acts of genocide and there must be evidence corroborating it, such as a history of ethnic violence, a recent escalation, a military build-up or incitement to ethnic violence, etc. The threshold of ‘attempted genocide’ referred to in Article III lit. (d) of the Convention may serve as a useful guideline: whenever a perpetrator has taken a ‘substantial step’ towards to commission of the crime, there would seem to be a ‘serious risk’ activating the duty to prevent. The second requirement is subjective in nature. For the duty to prevent to be 41 activated, a state party has to be aware, or should have been aware, of the serious risk of genocide. This is essentially a question of evidence. Direct diplomatic warnings are an obvious means of alerting a state of a dangerous situation; but public information, media coverage, or reports by (governmental or non-governmental) organisations can be relied on too.112 Where genocidal violence takes place as part of a widely-covered escalating conflict, state parties will be hard-pressed to plead ignorance; the same is true for conduct occurring on their own territory or in areas under their control.113 Importantly, what is required is knowledge (or potential knowledge) of the serious risk of genocide – but not certain knowledge that genocide would take place. The duty to act is activated even where uncertainty about the future conduct of the perpetrators remains – as long as, in the circumstances of the case, the serious risk of genocidal violence ‘might at least have been surmised’.114 110 ICJ Reports 2007, 43, para. 430; Zimmermann, in: Essays Simma, 634. See Forlati (PolYIL 31 (2001), 197–8) and Gattini (EJIL 18 (2007), 703–4) for attempts to concretise the requirement of a ‘serious risk’. 111 See ICJ Reports 2007, 43, para. 431: ‘This obviously does not mean that the obligation to prevent genocide only comes into being when perpetration of genocide commences; that would be absurd, since the whole point of the obligation is to prevent, or attempt to prevent, the occurrence of the act.’ 112 In the Bosnian Genocide case, the ICJ e. g. placed reliance on UN reports and inferred knowledge from well-covered facts (in casu: the occupation of the Srebrenica zone by Bosnian Serb forces): see ICJ Reports 2007, 43, para. 435. 113 See ICJ Reports 2007, 43, para. 434, where awareness is inferred from the generally close links between a state party and the eventual perpetrator of genocide: ‘the FRY was in a position of influence over the Bosnian Serbs who devised and implemented the genocide in Srebrenica … owing to the strength of the political, military and financial links between the FRY on the one hand and the Republika Srpska and the VRS on the other’. 114 ICJ Reports 2007, 43, para. 438.

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(3) The substantive dimension. Finally, clarification is necessary regarding precisely what is required to be prevented. At some level, the answer to this question is obvious: state parties are required to prevent acts of genocide from occurring. The question is whether the duty to prevent extends to cover the acts mentioned in Article III lit. (b) to (e), namely conspiracy, incitement, attempt and complicity. The wording of Article I does not support such an extensive interpretation: it refers to the prevention of ‘genocide’, not of attempted genocide, complicity or similar. That in itself does not settle the matter, though; as has been shown above, the duty to punish (perpetrators of) ‘genocide’ is equally construed to encompass the other acts mentioned in Article III.115 Yet there is a difference as regards the duty to punish, Articles VI and IV mandate such an extensive interpretation. As they concretise the duty to punish, their express wording (‘[p]ersons charged with genocide or any of the other acts mentioned in Article III’) informs the interpretation of Article I. No equivalent argument exists for the duty to prevent genocide, which is only mentioned in Article I. In fact, the preceding considerations116 indicate that the recognition of a global duty to act against impending acts of genocide is controversial; to read it to cover preparatory or inchoate acts would be a further extension. What is more, at least for some of the acts mentioned in Article III, such an extension would be difficult to construe. How could, to give just one example, a risk of conspiracy to commit genocide be construed meaningfully? And could such an extension of a duty to act be justified by reference to the overarching aim of the Convention, viz. to prevent (acts of) genocide (not conspiracy to commit genocide)? Finally, it is instructive to see that under other treaties recognising duties of prevention, the duty to act is triggered by the risk of actual abuses, not preparatory or inchoate acts.117 All this suggests that the duty to prevent imposed by Article I is a duty to prevent acts of genocide in the sense of Articles II, III lit. (a); not less, not more. cc. The content of the duty

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Given the universal reach of the duty, and the relevance of subjective factors (awareness; knowledge), it is no surprise that the content of the duty is not static. A global duty to prevent acts of genocide, irrespective of where they occur – imposed upon a state party with respect to criminal conduct on its territory, just as on small treaty members with respect to threats of genocide at the other end of the world, in countries they hardly interact with – needs to be differentiated and contextdependent. What is required, varies depending on the circumstances and on the identity of the duty-bearer. This in itself raises no principled concerns; in fact, content-dependent obligations are a common phenomenon in international law. They are formalised in regimes based on the notion of ‘differentiated responsibility’; a common feature of treaties imposing upon state parties obligations in the socioeconomic sphere, in which (as Simma notes) ‘the interpretation of economic and social [human] rights as well as of environmental regulation has often to take into 115

Supra, mn. 25. Supra, mns 35–8. 117 By way of illustration, see Article 2, lit (a) of the Convention against Torture: ‘Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture’ (emphasis added). 116

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account the resources and abilities of a state’.118 As these ‘resources and abilities’ – as well as the level of awareness of ‘serious risks’ of genocide – vary greatly, the precise content of the duty to prevent is difficult to pin down. However, based on the ICJ’s jurisprudence and general insights drawn from experience with contextdependent obligations in other areas of international law, relevant factors guiding the concretisation process can be identified. As regards the standard of assessment, the duty to prevent requires state parties 44 to mobilise their best efforts. There are two aspects to this: first, states are required to do all they reasonably can in a concrete setting; and second, they cannot be held responsible if despite their best efforts, the proscribed result actually occurs. The concept fusing both considerations is that of ‘due diligence’;119 in line with it, the duty to prevent genocide requires state parties ‘to employ all means reasonably available to them, so as to prevent genocide so far as possible’.120 This indeed, as has been noted,121 is the common construction of duties of prevention which are typically not guarantees but ‘best efforts obligations, … without warranting that the event will not occur.’122 The key parameter affecting what precisely state parties are required to do is that of ‘capacity to avert’, or ‘capacity to influence’: as in other areas of international law governed by due diligence obligations, ‘the more a State can do [to prevent a certain event], the more is expected from [it]’.123 Delineating the general criterion of ‘capacity to influence’ is the key challenge. 45 One general consideration flows from the general rule of international law that a state can only expected to do what it can legally do.124 The duty to prevent may require state parties to make use of existing options but it does not create new rights of intervention – hence, to give just one example, the recognition of a duty to prevent adds very little to debates about the unilateral use of force to stop genocide in so-called ‘humanitarian interventions’.125 As is set out more fully below,126 such a right, notwithstanding long-standing assertion, has so far not been accepted; but even if a right to use military force existed this would not mean that states had accepted a duty to act by forcible means. In short, the duty to prevent genocide can only be fulfilled through lawful action.127 118 Simma, in: Safferling/Conze, The Genocide Convention Sixty Years after Its Adoption, 262. The comparison with socio-economic rights is also drawn by Forlati, PolYIL 31 (2001), 201–2; Milanovic, EJIL 18 (2007), 686. 119 For much more on it see Gattini, Zufall und force majeure, 197–220; Hessbruegge, NYUJILP 36 (2004), 265. 120 ICJ Reports 2007, 43, para. 430. 121 Forlati, PolYIL 31 (2001), 200. 122 ILC, commentary to Article 14 ASR, para. 14, in YbILC, vol. II/2, 62. 123 Simma, in: Safferling/Conze, The Genocide Convention Sixty Years after Its Adoption, 262. 124 See ICJ Reports 2007, 43, para. 430: ‘it is clear that every State may only act within the limits permitted by international law’. 125 But contrast Gattini, EJIL 18 (2007), 701; Ben-Naftali, in: Gaeta, Genocide Convention, 43–4; Milanovic, EJIL 18 (2007), 687. 126 Infra, mns 95–7. 127 This is in line with other due diligence obligations to be exercised at the inter-state level: see e. g. the following section from the Committee of Economic, Social and Cultural Rights’ General Comment no. 14 (2000), addressing the inter-state dimension of a right to health: ‘To comply with their international obligations in relation to article 12, States parties have to respect the enjoyment of the right to health in other countries, and to prevent third parties from violating the right in other

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Article I 46, 47 Beyond the requirement of legality, the content of the duty can only be narrowed down progressively, as so much depends on the facts of a given situation.128 However certain important parameters can be outlined. They include four in particular: (i) Political and economic ties between the state and the would-be perpetrators of genocide: the more the latter are dependent on the state concerned, or amenable to its influence, the more international law expects from that state: ‘the scope of a state’s obligation to prevent genocide is directly proportionate to the state’s ability and influence over the relevant actors’.129 (ii) Geographical proximity: while the duty applies globally, a state’s capacity to influence developments will depend on its presence in the area where acts of genocide threaten to take place, or close thereby.130 (iii) Regularity of contact: a state’s capacity to influence will be affected not just by its economic and political relationship with the potential perpetrators, but also by its ability to reach them in due time. (iv) Legal powers: while rules of international law mostly impose general limits on what states are can do by way of prevention, they can also recognise rights or duties of particular states: treaties designating particular states as protective powers are one illustration, special powers enjoyed under regimes of occupation another.131 47 If these parameters are applied to specific instances, very different duties to prevent result.132 For instance, territorial states, or those exercising effective control over territory are under a particular duty to make their ‘best efforts’ to prevent genocide on their territory or in the area under their effective control. In other words, while the duty to prevent applies globally, without any territorial limitation, it imposes particular far-reaching obligations on territorial states and states exercising effective control over territory.133 46

countries, if they are able to influence these third parties by way of legal or political means, in accordance with the Charter of the United Nations and applicable international law’ (UN Doc. E/ C.12/2000/4, para. 39, emphasis added). 128 See Forlati, PolYIL 31 (2001), 201 (referring to the ‘structural impossibility to identify once and for all what behaviors would be required to fulfill the obligation of prevention’). 129 Milanovic, EJIL 18 (2007), 686. See further Gattini, EJIL 18 (2007), 701 (mentioning ‘the strength of the political links, as well as links of all other kinds, between that state and the main actors in the events’); and ICJ Reports 2007, 43, paras 430 and 434 (‘position of influence … unlike that of any of the other States parties to the Genocide Convention’). 130 ICJ Reports 2007, 43, para. 430 (‘geographical distance of the State concerned from the scene of the events’); Gattini, EJIL 18 (2007), 701. 131 By way of example, one could think of special links between ethnic groups in one state, and their ‘kin state’, of the special status of certain powers entrusted to guarantee a treaty regime, or of special responsibilities of occupying powers. In the Bosnian Genocide case, the ICJ mentioned previous court order through which the respondent state had been enjoined to be vigilant (ICJ Reports 2007, 43, para. 435); and, more generally, observed that ‘a State’s capacity to influence may vary depending on its particular legal position vis-a`-vis the situations and persons facing the danger, or the reality, of genocide’ (para. 430). 132 See ICJ Reports 2007, 43, para. 430: the capacity to influence ‘varies greatly from one State to another’. 133 The UN’s military presence in Srebrenica is frequently discussed; see e. g. Zimmermann, in: Essays Simma, 634: ‘one wonders whether the Netherlands, which at that time was present in the area as part of the UN- mandated United Nations Protection Force (UNPROFOR), had indeed

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Outside these special settings, the specific conduct required of third states where 48 genocide appears likely to occur in a foreign country can only be described tentatively. The conduct required almost exclusively depends on the character of the crime: if the impending genocide is the work of an isolated group of radicals whose activities the territorial state (or the occupying power) is willing to suppress, the duty of third states is typically one of facilitation. As such, they will be required to support the territorial state – e.g. by cooperating with its security forces, or by sharing intelligence.134 If, by contrast, foreign state organs are involved in the crime, or if the territorial state is unable to suppress the activities of organised state-like structures (for instance rebel movements exercising effective control over ‘their’ territory), the duty to prevent requires third states to take action against the perpetrators themselves. Such action may take various (lawful) forms, from diplomatic protests, supporting and implementing international sanctions, to suspending treaties or mobilising public opinion. Notwithstanding the existence of a duty to prevent, governments of course retain some measure of discretion in determining the appropriate course of conduct. To take just one example, the lifting of an (existing) arms embargo (permitting the delivery of weapons to a victim group) can, depending on the circumstances, be seen as an important measure of prevention, or as an escalation of the conflict.135 The fact that international law imposes upon state parties a duty to prevent genocide does not prejudge the assessment. It requires third states to interrogate their actions and choose a course of conduct (and make public the reasons for it) that seems best suited to prevent acts of genocide. But ‘it would be difficult to say that [third states] … became positively obliged to provide [a victim group] with weapons and military equipment’.136 In terms of directives for concrete action, for small states situated far away from 49 the area of ethnic tension, the existence of a duty to prevent may mean no more than a duty to support international efforts aimed at crisis prevention.137 For larger states or, as will often be the case, states participating in existing peace enforcement missions, the duty to prevent may ‘translate’ into more specific obligations. For example, if international troops are stationed close to the theatre of conflict, the continuation of an international military mission might be required even if it has become politically unpopular or militarily precarious.138 Where international law permits sanctions in response to a state’s gross human fulfilled its duty arising under Article 1 of the Genocide Convention’(footnotes omitted). For details see Nollkaemper, JIntCrimJust 9 (2011), 1143. 134 This suggests that, as in other areas of international concern for community goals, action by third states is subsidiary to action by territorial or national states. 135 The issue was discussed in detail by Judge ad hoc Lauterpacht in his separate opinion appended to the ICJ’s (second) provisional measures order in the Bosnian Genocide case: see ICJ Reports 1993, 407, especially paras 435–42. 136 See Sep. Op. Lauterpacht, ICJ Reports 1993, 407, 441. 137 Milanovic, EJIL 18 (2007), 686; and similarly Simma, in: Safferling/Conze, The Genocide Convention Sixty Years after Its Adoption, 262. 138 The Belgian case of Mukeshimana-Ngulinzira and others v Belgium and others addresses a related aspect: in it, the Brussels Court of First Instance found that the failure by the UN peacekeeping contingent to prevent the killing of Tutsis in the 1994 Rwanda genocide could be attributed to Belgium in a situation where the Belgian government had decided to withdraw itself from the peacekeeping operation (R.G. n 04/4807/A and 07/15547/A; ILDC 1604 (BE 2010), 8 December 2010).

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Article I 49–51 rights abuses, the actual use of sanctions – such as the passing of condemnatory resolutions within international institutions, the suspension of treaty benefits, or the suspension of membership in an international organisation – may be required. Finally, a state with close ties may be required by law to exercise massive diplomatic or economic pressure on a foreign regime seriously threatening to commit acts of genocide. Even these directives remain general, and very little suggests that the task of genocide prevention should be forced upon state parties through judicial processes alone.139 However, they indicate the modus operandi of the duty to prevent: within the realm of lawful responses to genocide, it provides normative ‘impulses’ towards action. In the face of a legal duty to prevent, the room for inaction and passivity shrinks. dd. Interim conclusion 50

The duty to prevent has been part of the Genocide Convention since 1948 but has only recently gained traction. The ICJ has been a catalyst of these developments, underlining its potential to be a powerful ‘law-formative agency’.140 The Court’s decisions in the Bosnian Genocide case have lent judicial authority to the proposition that genocide is a matter of global concern, irrespective of its locus deliciti commissi. This ambitious construction brings out very clearly that (as has been observed) ‘genocide anywhere is a threat to the security of all and should never be tolerated’.141 At the same time, it requires considerable effort to translate a vague ‘due diligence’ duty into specific legal obligations, especially for states situated far away from the scene of the impending crime. Whereas in other fields of international law, treaty bodies – as guardians of a specific treaty regime, regularly called upon to apply and specify treaty provisions – are well-placed gradually and progressively to flesh out the meaning of vague obligations, the Genocide Convention lacks institutions capable of performing such a concretisation process. (The ICJ as the main contender is not involved frequently enough.) This suggests that the duty to prevent will take some further time and effort to realise its normative potential. Still, its mere existence – ‘kissed awake’ by the ICJ – is important: even as a general guideline it is a potent reminder that faced with a serious risk of genocide, passivity (grudgingly accepted even by judge ad hoc Lauterpacht merely two decades ago142) is no longer an option. c. The duty not to commit genocide aa. General considerations

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Whereas Article I formulates duties to act against genocide (in the form of prevention and punishment), it does not expressly stipulate a duty not to commit the crime. This may seem counter-intuitive, as the international community’s primary interest surely is to preclude states from committing genocide – and one 139 It deserves to be recalled that in 1993, Bosnia and Herzegovina briefly entertained the possibility of an ICJ suit against the United Kingdom, alleging that country’s breach of the duty to prevent genocide. The case was quickly dropped, though. The relevant statement of intention is reproduced in Boyle, The Bosnian People Charge Genocide, 365–8. 140 See O’Connell, International Law, 31. For more on this aspect see Article IX, mn. 10. 141 High Level Panel Report, para. 200. 142 ICJ Reports 1993, 407, 444–5. See supra, mn. 21.

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might have expected the Convention to give expression to that interest.143 Moreover, the regulatory approach underlying Article I is different from that seen in other areas of law where so-called ‘negative duties’ of abstention (e. g. not to interfere with individual rights, not to intervene with diplomatic and consular immunities, etc.) have preceded the subsequent recognition of ‘positive obligations’ (to protect, to ensure, to prevent, to punish).144 That said, as noted elsewhere,145 the Convention is but one pillar of the international regime against genocide. In focusing – as its title indicates – on prevention and punishment, it takes a particular approach based on inter-state cooperation against genocide. Seen from that perspective, the decision to lay down duties of prevention and punishment may be entirely sensible, not counter-intuitive.146 The preceding considerations reflect different perspectives on the Convention as 52 a whole (and its Article I in particular), which inform the debate about the existence or otherwise of a treaty-based duty not to commit genocide. As with many other interpretative questions relating to Article I, this debate came to the fore during the proceedings in the Bosnian Genocide case before the International Court of Justice. In the particular setting of that case, the question indeed was decisive – and divisive: against strong dissents, a majority of the Court ‘affirm[ed] that the Contracting Parties are bound by the obligation under the Convention not to commit … genocide and the other acts enumerated in Article III’.147 Before assessing the matter, it is important to note that the setting of the case was peculiar; there is a risk of focusing too much on the interpretative controversies where most of the law is generally agreed. With that in mind, two broad areas of agreement can be usefully outlined at the outset. First, and most importantly, while the scope of the treaty obligation is disputed, it 53 is widely agreed that general international law imposes upon states a duty not to commit genocide.148 The obligation not to commit genocide exists irrespective of 143 See e. g. Simma, in: Safferling/Conze, The Genocide Convention Sixty Years after Its Adoption, 265: ‘It would be strange indeed to think that there is in the Convention no direct obligation on states not to commit genocide; but oddly enough, its text does not contain any express statement to that effect’. Quigley speaks of ‘the Convention’s curious omission’ (Quigley, Genocide Convention, 222). 144 See e. g. the sequence of obligations – from duties of abstention to positive duties of protection – imposed on receiving States pursuant to Article 29 VCDR: ‘The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.’ Pursuant to Article 1 ECHR, ‘[t]he High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention’: these and similar clauses have enabled human rights courts and bodies to develop a jurisprudence of ‘positive’ duties of protection, so to make right ‘practical and effective’. See generally Mowbray, Positive Obligations; Klatt, Zao¨RV 71 (2011), 691. 145 See Introduction, especially mns 1–6. 146 For clear expositions of this view see e. g. Judge Oda’s Declaration at the preliminary objections stage of the Bosnian Genocide case, ICJ Reports 1996, 625; as well as Judge ad hoc Krecˇa’s dissent and Judge Tomka’s separate opinion at the merits stage (ICJ Reports 2007, 457 and 310 respectively). For academic comment see notably Jørgensen, Responsibility of States, 264–78; Jørgensen, in: Essays Brownlie, 273; Milanovic, EJIL 17 (2006), 553; Milanovic, EJIL 18 (2007), 669; Gaeta, EJIL 18 (2007), 631. 147 ICJ Reports 2007, 43, para. 179. 148 Crawford/Olleson in Shelton, Encyclopedia, 910; Seibert-Fohr, in: Gaeta, Genocide Convention, 354; Shaw, in: Dinstein, International Law at a Time of Perplexity, 814. According to Gaeta

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Article I 53–56 the Convention; it is binding on all states and peremptory in nature.149 If a state commits genocide, it violates international law. This is beyond dispute. What is disputed is whether a state committing genocide also violates the Genocide Convention. The interpretative dispute is one about the scope of the Convention, not about the scope of international law more generally. 54 Second, a state that violates international law incurs state responsibility.150 This, too, is true irrespective of the source of the obligation. Accordingly, a state committing genocide must cease its unlawful conduct and make reparation for the injury suffered (in the form of compensation, for instance). Other states can bring claims for reparation and adopt lawful measures designed to put an end to the violation. As the duty not to commit genocide is owed to the international community as a whole, in whose observance all states have a legal interest (a so-called obligation erga omnes), each and every state can respond with a view to stopping on-going acts of genocide and ensuring reparation. As is discussed more fully below, this does not amount to a carte blanche; in order to remain lawful, responses have to respect certain limits.151 However, in principle, it is clear that a state committing genocide incurs responsibility to the international community as a whole and may face action from a multitude of other states. Again, this does not depend on the interpretation of Article I. 55 Both considerations help situate the interpretative dispute about the scope of Article I. It is an important dispute, but not everything hinges on it. In fact, in the light of the previous considerations, it is relevant in one setting in particular – namely where a state party, on the basis of Article IX, institutes inter-state proceedings before the International Court of Justice for breach of the Genocide Convention and accuses the respondent state of having committed acts of genocide. As Article IX clarifies, the Court’s jurisdiction in those proceedings comprises ‘[d]isputes … relating to the interpretation, application or fulfilment of the [Genocide] Convention’.152 By contrast, it does not cover breaches of general international law. As a consequence, a judicial finding will only be possible if Article I implicitly prohibits the commission of genocide. This is precisely the setting underlying inter-state proceedings like the Bosnian Genocide case.153 It is in that setting that the interpretative question is decisive. bb. The existence of a treaty-based duty not to commit genocide 56

Neither Article I nor other provisions of the Genocide Convention expressly enshrine a duty of states not to commit genocide. This in itself does not rule out the existence of such a duty: while criminal laws applied to individuals have to satisfy a (who disputes that a duty not to commit genocide was implicit in Article I), ‘[n]owadays nobody would dare to deny that customary international law contains a rule prohibiting states from committing genocide’ (EJIL 18 (2007), 632). 149 See the references in the last footnote; as well as ILC, commentary to Article 40 ASR, para. 4 (in YbILC 2001, vol. II/2, 112); and the ICJ’s remarks in the Armed Activities case, ICJ Reports 2006, 6, para. 64. 150 For more on these aspects see infra, mns 83–97. 151 Infra, mn. 94–7. 152 For details see Article IX, mns 43–7. 153 See e. g. Milanovic, EJIL 18 (2007), 671–3; and Seibert-Fohr, in: Gaeta, Genocide Convention, 354: ‘A case challenging the violation of customary international law could not be based on [Article IX]. The substantive clause of the Genocide Convention thus determines the Court’s jurisdiction’.

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certain level of predictability so to respect the principle of legality,154 international legal obligations of states need not be formulated expressly; they can be inferred.155 The question is whether Article I permits such an inference. This is a question of treaty interpretation, to be approached on the basis of the general rules of interpretation as reflected in Articles 31 to 33 VCLT. (1) Textual arguments. The text of Article I is inconclusive in this regard. It 57 would certainly not be far-fetched to derive a duty not to commit genocide from the twin obligations to prevent and punish it; but it is not necessarily implied in them. In the above-mentioned case, the ICJ disagreed with the latter statement. According to the Court’s majority, a duty not to commit genocide ‘follows from the expressly stated obligation to prevent the commission of acts of genocide. That obligation requires the States parties, inter alia, to employ the means at their disposal…. It would be paradoxical if States were thus under an obligation to prevent, so far as within their power, commission of genocide by persons over whom they have a certain influence, but were not forbidden to commit such acts through their own organs, or persons over whom they have such firm control that their conduct is attributable to the State concerned under international law. In short, the obligation to prevent genocide necessarily implies the prohibition of the commission of genocide.’156

Support has also be drawn from the fact that Article I declares genocide to be a 58 ‘crime under international law’. A crime amounts to a violation of the law – and thus implies a verdict of (qualified) illegality. Again, the existence of a duty not to commit genocide has been inferred from this: ‘by agreeing to such a categorization [‘crime under international law’], the States parties must logically be undertaking not to commit the act so described.’157

Both arguments are plausible, but not conclusive. They presuppose what they 59 seek to prove – namely that states are under a duty not to commit genocide themselves. They do not exclude an alternative reading of Article I as a provision treating genocide as a crime of individuals only. Judging from the wording of the provision, states could very well have concluded a treaty criminalising (or confirming the criminal nature) of genocide committed by individuals – in which case the ‘crime under international law’ would simply not apply to states, and it would be perfectly possible for Article I to focus on duties of prevention and punishment.158 (2) Context. The context of Article I is more instructive. It is invoked by 60 adherents of both views,159 but on balance supports the existence of a duty not to commit genocide. Critics have drawn attention to the fact that most of the Convention’s substantive provisions – Articles III, IV, VI and VII – treat genocide

154

For a concise summary see Kreß, Nulla poena, in: MPEPIL, paras 19–32. See further Gaeta EJIL 18 (2007), 638–9 (noting the shift towards ‘more liberal’ methods of treaty interpretation in international law). 156 ICJ Reports 2007, 43, para. 166. Seibert-Fohr (in Safferling/Conze, The Genocide Convention Sixty Years after its Adoption, 248–50) agrees, as does Cassese, JIntCrimJust 5 (2007), 877–8. 157 ICJ Reports 2007, 43, para. 166. 158 This is precisely what, amongst others, Judges Oda and Tomka argued: see ICJ Reports 1996, 626, and ICJ Reports 2007, 333–5. 159 Contrast e. g. Judge Tomka (relying on the wording of the Preamble: ICJ Reports 2007, 334) to Court’s majority judgment (drawing on the link between Articles I and IX: ICJ Reports 2007, 43, paras 166–9). 155

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Article I 60–62 as a crime of individuals.160 Articles III, IV, VI and VII however are only part of the Convention and references to them ignore the potential impact of Article IX in particular. Otherwise a common dispute settlement clause, it contains an intriguing final clause. It establishes the Court’s jurisdiction over disputes relating to the interpretation, application and fulfilment of the Convention and expressly mentions disputes ‘relating to the responsibility of a State for genocide or for any of the other acts enumerated in Article III’.161 For a state to incur ‘responsibility for genocide or for any of the other acts enumerated in Article III’, said conduct has to be unlawful. Recognition of a duty not to commit genocide would lead to that result. At least in Article IX, the Convention seems to accept that states can incur responsibility for having committed genocide. If this is true for Article IX, it seems indicated to construe Article I in the same way.162 This can be said to be the case especially since Article I and Article IX are closely linked; inter-state proceedings being envisaged are the most important means of enforcing the Convention.163 61 Traditionally, those sceptical of an implicit duty not to commit genocide have relied on a systematic argument of a more general character. Pursuant to a popular view, genocide being condemned as a crime in the Convention, state responsibility for the commission of genocide would have to be ‘criminal’ in nature.164 However, as international law did not accept a concept of state criminality, the Convention did not envisage state responsibility for the commission of genocide: ‘as a matter of general principle, international law does not recognize the criminal responsibility of the State, and the Genocide Convention does not provide a vehicle for the imposition of such criminal responsibility’.165

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Yet this argument is difficult to comprehend. It assumes that the commission of a ‘crime under international law’ would entail the criminal responsibility of states. For a while, this was indeed suggested by provisions, devised in the course of the ILC’s work on state responsibility, on ‘state crimes’ (of which genocide was considered a paradigm example).166 But these debates have been overcome – and 160 In its pleadings in the Bosnian Genocide case, the respondent e. g. drew attention to the ‘references, in Article III to punishment (of individuals), and in Article IV to individuals being punished, and the requirement, in Article V for legislation in particular for effective penalties for persons guilty of genocide, the provision in Article VI for the prosecution of persons charged with genocide, and requirement in Article VII for extradition’ (see ICJ Reports 2007, 43, para. 171). 161 For further detail see Article IX, mn. 46. 162 Commentators disagreeing with this result have suggested that Article IX was a mere jurisdictional clause that could not determine the scope of substantive obligations (see e. g. the separate opinion of Judge Tomka, ICJ Reports 2007, 333). However, this is not conclusive either: from the perspective of treaty interpretation, jurisdictional provisions are not of lesser relevance; just as much as other treaty clauses, they form part of the treaty context. 163 The point is also stressed by Milanovic, EJIL 17 (2006), 565–6; and Quigley, Genocide Convention, 236–7. 164 See the references in Jørgensen, Responsibility of States, 264–78; Jørgensen, in: Essays Brownlie, 273; Quigley, Genocide Convention, 227–33. 165 As formulated by the respondent in the Bosnian Genocide case: ICJ Reports 2007, 43, para. 170. 166 See notably the ILC’s early work on state responsibility, whose draft article 19 introduced the notion of ‘State crimes’ (YbILC 1976, vol. II/2, 95–6). The provision prompted an abundant literature, much of which is of no longer relevant today: for a comprehensive account see e. g. the contributions to Weiler/Cassese/Spinedi; as well as Jørgensen, Responsibility of States, 46–54, for a useful summary of developments.

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the category of ‘state crimes’, with its problematic penal connotations, replaced by a differentiated regime of responsibility that avoids misleading labels like ‘criminal’ or ‘civil’.167 This in turn has paved the way for a much more pragmatic understanding well expressed in the following assessment: ‘while it is a crime for the existence of which there must be a criminally responsible individual, genocide is also an internationally wrongful act, in the sense that its commission can give rise to state responsibility under the customary rules of attribution of individual acts to a state. If the proper standard of attribution is fulfilled, individual and state responsibility run concurrently, as both a state and an individual could be held responsible for a single act under international law’.168

At the merits stage of the Bosnian Genocide case, the ICJ put the matter in even clearer terms: ‘The Court observes that the obligations in question in this case, arising from the terms of the Convention, and the responsibilities of States that would arise from breach of such obligations, are obligations and responsibilities under international law. They are not of a criminal nature.’169

This suggests that broad conceptual debates about ‘state criminality’ add rather little to the interpretation of Article I. All things considered, the treaty context would seem to support the existence of an implicit obligation not to commit genocide as a matter of treaty law. When looking at international rules beyond the Convention’s text, it becomes clear 63 that other treaties, too, have been read to include an implicit prohibition against state conduct. The 1984 Convention against Torture may serve to illustrate the point.170 Like the Genocide Convention, it defines torture and formulates a range of express obligations to criminalise it, prosecute torturers, cooperate with other states amongst other obligations – but no provision expressly obliges state parties not to commit it in the first place. Notwithstanding this silence, there is general agreement that states are required, as a matter of treaty law, not to engage in torture. In its General Comment No. 2, the Committee against Torture stressed that ‘States bear international responsibility for the acts and omissions of their officials and others … acting on behalf of the State, in conjunction with the State, under its direction or control or otherwise under colour of law.’171 As has been observed, ‘[n]o State party has ever argued that it is not responsible for acts of torture committed by its authorities because the Convention only obliges [it] to prevent torture.’172 Put differently, the obligation of states not to commit torture, while not laid down expressly, is considered to be part 167

This gradual move away from the notion of ‘state crimes’ was a highly controversial process. For a succinct summary see Milanovic, EJIL 17 (2006), 561–2; for further detail Wyler/CastellanosJankiewicz, 394–400. Contributions to a 1999 symposium reflect the dramatic character of the debate: contrast Abi-Saab, EJIL 10 (1999), 339; Gaja, EJIL 10 (1999), 365; Pellet, EJIL 10 (1999), 425. 168 Milanovic, EJIL 17 (2006), 561. 169 ICJ Reports 2007, 43, para. 170. 170 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85. The Forced Disappearances Convention of 20 December 2006 (Annex to GA Res 61/177) could equally be relied upon by way of illustration. 171 General Comment No. 2, UN Doc. CAT/C/GC/2 (24 January 2008), para. 15. 172 Seibert-Fohr, in: Safferling/Conze, The Genocide Convention Sixty Years after its Adoption, 249. By way of illustration, see ICTY’s Furundzˇija judgment (TC, 10 December 1998, paras 140–2); but contrast Gaeta’s reference to anti-trafficking treaties, which in her view do not give rise to state responsibility: Gaeta, EJIL 18 (2007), 640.

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Article I 63–65 of the conventional regime against torture. A parallel construction of the Genocide Convention would thus not be unprecedented. 64 (3) Purpose; subsequent practice. The object and purpose of the Convention provides some further support for the existence of an implicit obligation not to commit genocide. In this respect, of course, all depends on how the Convention’s object and purpose is understood. As noted elsewhere, in light of the Preamble’s commitment to ‘liberate mankind from [the] odious scourge [of genocide]’, it is best construed broadly, comprising international cooperation against criminal behaviour as well as inter-state proceedings and UN action.173 Thus construed, the object and purpose of the Convention would militate in favour of a duty not to commit genocide, as it would add a further dimension to the international struggle against genocide.174 Admittedly, commentators construing the Convention’s object more narrowly – as a ‘standard international criminal law convention focused essentially on the criminal prosecution and punishment of individuals’175 – are unlikely to be persuaded.176 Yet their narrow construction fails to account for the existence of an express state duty to prevent genocide; and it cannot explain why the Convention should envisage inter-state proceedings about ‘responsibility for genocide’ or a broad range of UN measures aimed at the prevention and suppression of genocide. 65 Finally, a duty not to commit genocide seems to be recognised in the subsequent practice of state parties. Statements of parties made during judicial proceedings illustrate this point.177 Applicant states accused respondent states of having committed genocide (and thus violated Article I of the Convention) in thirteen proceedings.178 By implication, these applicant states – the Federal Republic of Yugoslavia in the ten Legality of Use of Force cases, Bosnia and Herzegovina and Croatia in their proceedings brought against the Federal Republic of Yugoslavia and the Democratic Republic of the Congo in the Armed Activities case brought against Rwanda – have accepted that Article I comprises an implicit duty not to commit genocide. What is more, of the respondent states in these proceedings, only one – the Federal Republic of Yugoslavia in the Bosnian Genocide case – has disputed the underlying proposition;179 and its approach as a respondent was in stark contrast to its own pleadings in the Legality of Use of Force cases.180 Other respondents, even 173

Introduction, mns 50–5. Seibert-Fohr, in: Gaeta, Genocide Convention 364; Cassese, JIntCrimJust 5 (2007), 877–8. 175 See ICJ Reports 2007, 43, para. 171 (summarising arguments of the respondent state). Similarly the Joint Declaration of Judges Shi and Vereshchetin, ICJ Reports 1996, 631: ‘The Convention on Genocide is essentially and primarily directed towards the punishment of persons committing genocide or genocidal acts and the prevention of the commission of such crimes by individuals.’ 176 For example, Judge Oda considered that ‘the extremely vague and uncertain provision of Article IX of the Genocide Convention may leave room for the Court to allow itself to be seised of [a dispute involving State responsibility for genocide] … but … such a conclusion would be based on a misinterpretation of the real spirit of the Genocide Convention’ (ICJ Reports 1996, 625, 630). 177 Quigely, Genocide Convention, 238–9. For brief summaries of proceedings see Article IX, mns 4–9. 178 That is, in all but one of the (fourteen) proceedings brought on the basis of Article IX. 179 As noted by Crawford and Olleson, the Federal Republic of Yugoslavia’s argument ‘did not have as a necessary premise that state responsibility for actual acts of genocide attributable to a State does not exist; rather, the argument was that State responsibility of this type did not fall within Article IX’ (Crawford/Olleson, in: Shelton, Encyclopedia, 908). 180 Contrast the respondents state’s views summarised in ICJ Reports 2007, 43, para. 171 (‘the nature of the Convention is such as to exclude from its scope State responsibility for genocide and 174

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when limiting themselves to preliminary objections, have defended themselves against the charge of genocide – but have not argued that Article I did not prohibit the commission of genocide in the first place. (4) Implications: a duality of responsibilities. All this suggests that the ICJ was 66 correct to recognise, in its judgment in the Bosnian Genocide case, the existence of an implicit duty not to commit genocide. As the Court correctly noted, the drafting history – summarised above181 – does not contradict this view. While drafters focused on other aspects, they did, at least occasionally, mention the possibility of state responsibility for genocide. The decision not to formulate a corresponding provision remains ‘a curious omission’.182 Yet the better arguments suggest that it can be inferred: the duty not to commit genocide thus completes the trias of obligations imposed by Article I. From a broader perspective, the recognition of a duty not to commit genocide 67 has important implications for the focus of the Convention as a whole. Where genocide is committed through state conduct (or rather: conduct attributable to a state183), it means that state responsibility arises alongside criminal responsibility of individual perpetrators. This is not in itself unusual, as has been noted (amongst others by the ICJ), such ‘duality of responsibilities’ is by no means alien to international law: in fact, it is implicit in, or at least contemplated by, major texts, such as the ILC’s Articles on State Responsibility184 or the Rome Statute.185 As regards judicial pronouncements, the ICTY Trial Chamber in the Furundzˇija case – addressing the coexistence of individual and state responsibility under international humanitarian law, but expressing a general principle – made the following observation: ‘Under current international humanitarian law, in addition to individual criminal liability, State responsibility may ensue as a result of State officials engaging in torture or failing to prevent torture or to punish torturers. If carried out as an extensive practice of State officials, torture amounts to a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, thus constituting a particularly grave wrongful act generating State responsibility.’186 the other enumerated acts’) to the following statement, made in the Application instituting proceedings in the Legality of Use of Force cases (Application of 29 April 1999, at http://www.icjcij.org/docket/files/105/7155.pdf): ‘Furthermore, the obligation contained in the Convention on the Prevention and Punishment of the Crime of Genocide not to impose deliberately on a national group conditions of life calculated to bring about the physical destruction of the group has been breached.’ While Article I of the Convention is not named, the reference is to an implicit duty not to commit acts of genocide. 181 Supra, mns 5–12. 182 Quigley, Genocide Convention, 222. 183 For details on the relevant rules of attribution see infra, mns 76–81. 184 See Article 58 ASR: ‘These articles are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State.’ In the commentary to the provision, the ILC notes: ‘Where crimes against international law are committed by State officials, it will often be the case that the State itself is responsible for the acts in question or for failure to prevent or punish them. … [T]he question of individual responsibility is in principle distinct from the question of State responsibility. The State is not exempted from its own responsibility for internationally wrongful conduct by the prosecution and punishment of the State officials who carried it out’ (YbILC 2001, vol. II/2, 141–2; footnotes omitted). 185 See Article 25, para. 4 of the Rome Statute: ‘No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.’ 186 ICTY, Furundz ˇija, TC, 10 December 1998, para. 142.

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Article I 67–70 In the light of these (and similar) provisions and pronouncements, Pierre-Marie Dupuy correctly observed that a single criminal act could entail ‘two distinct types of responsibility coming under mutually autonomous legal regimes’,187 viz. state responsibility on the one hand, and individual criminal responsibility on the other. While the co-existence of the ‘two distinct types of responsibility’ requires coordination, it does not present insurmountable conceptual problems. cc. The scope of the duty Once the existence of a treaty-based duty is admitted, it becomes necessary to determine its scope. As the duty is implicit in Article I, which imposes duties relating to genocide, the Convention’s definition of the crime in Article II is relevant in this regard. The territorial scope of the duty needs to be assessed on the basis of general considerations and systematic arguments. Finally, unlike with respect to the duties of punishment and prevention, which in practice will only be invoked if a state party acts through its state apparatus, the scope of the duty not to commit genocide depends on questions of attribution: what is prohibited is for a state to commit genocide; yet as ‘[c]rimes against international law are committed by men, not by abstract entities’188 (as has been famously held), it must be determined which acts of men (or women) amount to acts of the state under international law. 69 (1) Substantive scope. The preceding considerations, while establishing the existence of a duty not to commit genocide, do not clarify what precisely state parties must refrain from doing. In essence, it is clear that they must not commit acts of genocide as such – this is but a necessary consequence of what has been discussed so far. Yet two questions need to be addressed. First, how is it to be assessed whether a state party has violated the obligation not to commit genocide? And second, does Article I – in addition to the duty not to commit genocide – impose upon state parties self-standing prohibitions against complicity in genocide, attempted genocide, conspiracy and/or incitement? 70 The answer to both questions flows from the considerations, set out above, about the coexistence of state and individual responsibility for acts of genocide.189 As has been noted, state responsibility for genocide complements the Convention’s provisions on individual criminal responsibility for genocide. In fact, it is construed as the other side of the same coin: a state incurs responsibility whenever an individual commits acts of genocide and these acts are attributable to the state in line with the general rules on attribution. As regards the first question – how to assess a state party’s responsibility – this suggests that state responsibility for acts of genocide is ancillary in nature: it is the consequence of an individual, acting for the state, committing acts of genocide.190 It presupposes the commission of the crime by someone acting on behalf of the state. This – pragmatic – ancillary construction helps avoid a major problem that traditionally concerned commentators enormously, viz. how should an abstract entity like a state act with the required special intent to ‘destroy, in whole or in part, a national, ethnical, racial or religious group, 68

187

Dupuy, in: Cassese/Gaeta/Jones, The Rome Statute, Vol. I, 1098. IMT, Trial of the Major War Criminals, vol. 1 (1947), para. 227. 189 Supra, mns 66–7. 190 This ‘ancillary’ construction also helps address the requirement of intent – which sometimes is seen as a problem: how could like a State act with the specific ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group’? 188

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as such’?191 Read properly, this really is ‘the wrong question to ask’.192 If state responsibility is a side-effect of individual criminal responsibility, no specific ‘state intent’ is required. A state incurs responsibility ‘[i]f persons whose conduct is attributable to the state entertain the requisite intent’.193 This seems perfectly in line with general approaches to state responsibility: ‘[a]s for all other internationally wrongful acts, the issue of fault in the commission of such acts is purely a matter for primary rules. Genocidal intent need only be shown for those individuals whose acts are being attributed to a state’ – but not for the state itself.194 There is a second aspect to the ancillary understanding of state responsibility for 71 genocide. The duty not to commit genocide remains a duty against actual acts of genocide (and, subject to the considerations set out in the following sections,195 against related acts). While this may sound straightforward, it implies an important distinction: unlike under some human rights treaty regimes, the prohibition against genocide (and related acts) does not morph into a prohibition on conduct that could somehow contribute to genocidal violence.196 State responsibility only runs as far as individual responsibility runs. Any other construction would ignore the differentiated regime of duties imposed by Article III. The real question is whether (as has been asserted197) state responsibility for 72 genocide requires a prior finding of individual criminal responsibility for genocide, or even a prior conviction of an individual perpetrator. Such an approach would no doubt bring out the link between the ‘dual responsibilities’ very clearly. Yet it seems difficult to justify. Not only would it severely limit the scope of Article I’s duty not to commit genocide, (as individual convictions for acts of genocide are so rare)198 it would replace the ‘duality’ of ‘two distinct types of responsibility coming under mutually autonomous legal regimes’199 by a hierarchical system in which state responsibility is subordinate to individual criminal responsibility – notwithstanding its non-criminal nature. It would run counter to regular approaches to state responsibility which do not require (international) courts to ‘verify’ the existence of a breach of international law before it can be invoked. And it would ignore the 191 See e. g. Gaeta, EJIL 18 (2007), 635; Cassese, Me ´langes Virally, 184; Schabas, Genocide in Int’l Law (1st ed.), 444 (‘The obvious problem is that the Convention definition of genocide requires proof of specific intent. It is hard to conceive of a State with a specific intent.’) 192 Milanovic, EJIL 18 (2006), 567. 193 Quigley, Genocide Convention, 238. 194 Milanovic, EJIL 18 (2006), 569. 195 Infra, mn. 73. 196 The point is raised by Seibert-Fohr, in: Safferling/Conze, The Genocide Convention Sixty Years after its Adoption, 254–5 (who, however, suggests Article I should be construed as a ‘duty not to contribute to genocide’). 197 See the Respondent’s arguments in the Bosnian Genocide case, ICJ Reports 2007, 43, para. 180: ‘According to the Respondent, the condition sine qua non for establishing State responsibility is the prior establishment, according to the rules of criminal law, of the individual responsibility of a perpetrator engaging the State’s responsibility.’ 198 The ICJ put this very clearly: ‘Any other interpretation could entail that there would be no legal recourse available under the Convention in some readily conceivable circumstances: genocide has allegedly been committed within a State by its leaders but they have not been brought to trial because, for instance, they are still very much 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 exercise jurisdiction over the alleged crimes; or the responsible State may have acknowledged the breach’ (ICJ Reports 2007, 43, para. 182). 199 Dupuy, in: Cassese/Gaeta/Jones, The Rome Statute, Vol. I, 1098.

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Article I 72–75 differences between criminal proceedings (influenced by principles such as ne bis in idem, fair trial, and often requiring high thresholds of proof) and international claims (not similarly regulated). All this suggests that the ICJ was correct to stress ‘that State responsibility can arise under the Convention for genocide …, without an individual being convicted of the crime’.200 73 General considerations also help address the second question mentioned above, namely whether the state duty not to commit genocide also extends to the other acts mentioned in Article III, such as conspiracy, incitement, attempt and complicity. On the face of it, this may seem to overstretch the limits of implied reasoning. If it is doubtful whether Article I contains a treaty-based prohibition against genocide at all, how could that prohibition be extended to cover related (preparatory or inchoate) acts?201 Yet that ignores the implications of the duality of responsibility. If state responsibility is the result of an individual committing acts criminalised by the Convention, much suggests it should be ancillary to all forms of conduct mentioned in Article III, in other words not just to acts of genocide but also to complicity in genocide, attempted genocide, conspiracy and incitement. Such a broader reading of Article I also takes account of the fact that Article III treats the various acts as equally punishable and it best accommodates the Convention’s object of outlawing genocide as far as possible.202 As regards the treaty context, recognition of self-standing prohibitions against complicity, conspiracy, attempt and incitement is in line with Article IX, which envisages ICJ proceedings in a disputes ‘relating to the responsibility of a State for genocide or any of the other acts enumerated in Article III’.203 And finally, it would bring the Convention into line with other humanitarian treaties, which enshrine duties against incitement and forms of complicity.204 In the light of these considerations, the duty of states not to commit genocide is really a duty not to commit acts of genocide or any of the other acts enumerated in Article III. 74 (2) Territorial scope. In terms of its territorial scope, the duty not to commit genocide, just like the duty to prevent, is ‘not territorially limited’ – but unlike with respect to the duty to prevent, this is largely undisputed. As with other crimes under international law, the prohibition is universal in scope. Having committed themselves to ‘liberate mankind from … [the] odious scourge [of genocide]’, states must not commit acts of genocide or any of the other acts anywhere in the world. 75 Notwithstanding these considerations, in practice, as far as ‘acts of genocide’ themselves are concerned, some form of control or power over victims will typically be required for a state to be in a position to commit genocide. Yet importantly, unlike under many human rights agreements, that control or power over persons or a situation is not required.205 Conversely, where a state is alleged to have committed 200

ICJ Reports 2007, 43, para. 182. For powerful arguments to this effect see Cassese, JIntCrimJust 5 (2007), 878–9 (speaking of a ‘remarkable extension of contracting states’ obligations under the Convention’). 202 These latter aspects were stressed by the ICJ: see ICJ Reports 2007, 43, para. 167. 203 Emphasis added. On the relevance of Article IX for the interpretation of Article I see supra, mn. 47. 204 By way of example, see Article III of the International Convention on the Suppression and Punishment of the Crime of Apartheid; Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination. 205 Contrast the various thresholds of control or power required for human rights conventions to be applicable to State conduct: pursuant to Article 2, para. 1 ICCPR, the rights of the Covenant are to be granted to individuals ‘within [a State’s] territory and subject to its jurisdiction’; pursuant to 201

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acts of genocide, there is no need to establish a threshold of control in order to hold it responsible. This brings out ‘the universal character … of the condemnation of genocide’206 with particular clarity. (3) Attribution of conduct. The question remains under what circumstances a 76 state party is responsible for acts of genocide or other acts in the sense of Article III. Since the Convention is silent on this the general rules on attribution of conduct to a state apply.207 They are set out in Part One, Chapter II, of the 2001 Articles on State Responsibility elaborated by the ILC which – while not binding – are generally taken to reflect general international law. The key proposition underlying these rules is a distinction between public conduct (which is attributed) and private acts (which generally are not).208 Seeking to apply that distinction, the ILC’s text sets out a number of rules of attribution of which three merit to be addressed.209 First, and most obviously, a state is responsible for acts of its organs.210 This 77 includes all three branches of government as well as regional/provincial or communal authorities: from the perspective of international responsibility, the state is treated as a unitary actor; hence ‘acts or omissions of all its organs [are] regarded as acts or omissions of the State for the purposes of international responsibility.’211 The concept of a ‘state organ’ includes all persons and entities that form part of the state apparatus, including members of the military, police officers or of other security forces employed by the state, and vested with powers Article 1 ECHR, ‘[t]he High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.’ As is well-known, the interpretation and application of these threshold requirements has given rise to much controversy (aptly assessed by Milanovic, HRLR 8 (2008), 411). As the duty not to commit genocide is not territorially limited, no equivalent problems arise with respect to Article I. 206 See ICJ Reports 1951, 15, 23. 207 See ICJ Reports 2007, 43, para. 410: ‘The rules for attributing alleged internationally wrongful conduct to a State do not vary with the nature of the wrongful act in question in the absence of a clearly expressed lex specialis.’ For more on this point see Simma, in: Safferling/Conze, The Genocide Convention Sixty Years after its Adoption, 266–8. 208 In its introductory commentary to Chapter II, the ILC summarised this in the following terms: ‘In theory, the conduct of all human beings, corporations or collectivities linked to the State by nationality, habitual residence or incorporation might be attributed to the State, whether or not they have any connection to the Government. In international law, such an approach is avoided, both with a view to limiting responsibility to conduct which engages the State as an organization, and also so as to recognize the autonomy of persons acting on their own account and not at the instigation of a public authority. Thus, the general rule is that the only conduct attributed to the State at the international level is that of its organs of government, or of others who have acted under the direction, instigation or control of those organs, i. e. as agents of the State’ (YbILC 2001, vol. II/2, 38). For reflections on implications, and the appropriateness, of the distinction see e. g. Chinkin, EJIL 10 (1999), 387. 209 For much more on questions of attribution (of which the following remarks merely provide a brief summary) see e. g. Condorelli/Kreß, in: Crawford/Pellet/Olleson, International Responsibility, 221; Momtaz, ibid., 237; and de Frouville, ibid., 257. 210 Hence Article 4, para. 1 ASR provides: ‘ The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.’ Pursuant to para. 2, ‘[a]n organ includes [but is not limited to] any person or entity which has that status in accordance with the internal law of the State.’ 211 ILC, commentary to Article 4 ASR, para. 5 (YbILC 2001, vol. II/2, 40).

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Article I 77–79 under its internal laws. Conduct by these bodies is attributed even where it is ultra vires, for instance if the acting official or bodies ‘exceeds its authority or contravenes instructions.’212 78 Second, conduct by officials or bodies not formally integrated into the state apparatus is exceptionally attributed to the state if in fact, the entity in question ‘is empowered by the law of that State to exercise elements of the governmental authority’ and acts in that capacity.213 The formulation is intended to cover actions of so-called ‘de facto organs’ or ‘parastatal’’ entities. Such de facto organs perform public functions without official organ status; privatised military corporations or private security services used by the state are most prominent examples. As the ILC and ICJ have clarified,214 for an entity to qualify as a de facto organ, a high level of state control is required. In the words of the Court, the persons or entities must ‘in fact … act in ‘complete dependence’ on the State, of which they are ultimately merely the instrument’215 – for example due because of intense scrutiny and close supervision by state organs proper. 79 Third, conduct of private persons or entities (neither de jure nor de facto organs) can be attributed to a state if it was in fact carried out under the instructions of that state or if the state directed or controlled it. As the prohibition against genocide applies globally, this third category of attribution potentially covers state conduct ‘by proxy’ in foreign countries. Not surprisingly, there is much debate, notably about the threshold required for private conduct to be attributed to a state controlling it.216 Before assessing the matter, it is worth noting that the two other forms of state involvement (‘instructions’ or ‘direction’) are less controversial. Both are rather closely related: in both instances, the state orders private individuals or entities to acts in a way that violates international law. This presupposes state influence over the violation. It also is necessary for the state to influence the specific operation in which international law was violated.217 If this happens, the state – by giving instructions or directions – will typically violate the 212 See Article 7 ASR. As the ILC correctly emphasises in its commentary: ‘The State cannot take refuge behind the notion that, according to the provisions of its internal law or to instructions which may have been given to its organs or agents, their actions or omissions ought not to have occurred or ought to have taken a different form. This is so even where the organ or entity in question has overtly committed unlawful acts under the cover of its official status or has manifestly exceeded its competence. It is so even if other organs of the State have disowned the conduct in question’ (commentary to Article 7 ASR, para. 2: YbILC 2001, vol. II/2, 46). 213 Article 5 ASR. In its commentary, the ILC notes: ‘The justification for attributing to the State under international law the conduct of ‘parastatal’ entities lies in the fact that the internal law of the State has conferred on the entity in question the exercise of certain elements of the governmental authority’ (commentary to Article 5 ASR, para. 5: YbILC 2001, vol. II/2, 43). 214 See paras 5–7 of the ILC’s commentary to Article 5 ASR (YbILC 2001, vol. II/2, 43); Nicaragua case, ICJ Reports 1986, 14, paras 109–10; Bosnian Genocide case, ICJ Reports 2007, 43, paras 390–5. 215 Bosnian Genocide case, ICJ Reports 2007, 43, paras 392 (citing para. 109 of the Nicaragua judgment). 216 See e. g. de Frouville, in: Crawford/Pelleter/Olleson, International Responsibility, 257; Talmon, ICLQ 58 (2009), 493; as well as – with particular focus on the Genocide Convention and the Bosnian Genocide case – Spinedi, JIntCrimJust 5 (2007), 829; Cassese, EJIL 18 (2007), 649; Milanovic, EJIL 18 (2007), especially at 575–88 and 597–601. 217 Cassese EJIL 18 (2007), 663. In para. 7 of its commentary to Article 8 ASR, the ILC distinguished two grounds for attribution: ‘specific directions’ and ‘exercising control’ (YbILC 2001, vol. II/2, 48).

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prohibitions against incitement or conspiracy to commit genocide. If the act in question is carried out, the state is also responsible for the actual act of genocide. Compared to ‘direction’ or ‘instruction’ – both rather specific – ‘control’ seems 80 to denote a more general form of influence over conduct. The requirement of attribution qua ‘control’ is disputed. Typically, the debate is presented as a choice between two opposed approaches: the test favoured by the ICJ and ILC, and that put forward by the ICTY in Tadic´.218 The former emphasises the need to establish control over specific violations: as noted by the ICJ in the Nicaragua case, ‘[f]or this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed’.219 By contrast, in Tadic´, the ICTY was willing to accept that, where violations were carried out by paramilitary units with an autonomous command structure, ‘control’ over specific acts could be inferred if a state exercised ‘overall’ or ‘global’ control ‘in respect of the overall actions taken by the persons or groups of persons having committed the violations’.220 Given the heated character of the debate, it is important to note that the difference between the two approaches is gradual, not categorical. Under both approaches, effective control – and thus attribution of specific breaches – can be inferred from circumstantial evidence, including evidence about the general relationship between the state and its proxy: close involvement of state organs in decision-making processes of the actual perpetrators will be a factor, just as their geographical proximity to the site of the crime;221 and in both instances, the general relationship between the state and the proxy will be relevant. What is more, under both approaches, state control over specific operations facilitates attribution: the more detailed a state’s knowledge and involvement, the easier it control – and thus attribution – is established. The difference is one of degree.222 That said, when formulating the required test systematic considerations suggest 81 that indeed, under the Genocide Convention, attribution should be based on control over specific violations of international law. In its Article III, the Convention lays down a differentiated regime of involvement in genocide, which gives rise to corresponding state obligations.223 What is more, the international regime against genocide exists alongside international rules against indirect uses of force and intervention. The problem with a test based on ‘overall control’ is not that it 218

Including by the ICJ in the Bosnian Genocide case: see ICJ Reports 2007, 43, paras 401–2. ICJ Reports 1986, 14, para. 15. Two decades later, the Court stated that ‘’effective control’ [must be] exercised … in respect of each operation in which the alleged violations occurred’ (ICJ Reports 2007, 43, para. 400). 220 See ICJ Reports 2007, 43, para. 400; and see ICTY, Tadic ´, AC, 14 July 1999, paras 115–45. 221 To give just one example, in Nicaragua, the ICJ – operating under the more specific test – did not ignore the United States’ general control; it merely held it would have to be corroborated by evidence of control over the specific operations: ‘the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State’ (ICJ Reports 1986, 14, para. 115). 222 Hence categorical arguments – along the lines of ‘the ‘overall control’ test is unsuitable, for it stretches too far, almost to breaking point, the connection which must exist between the conduct of a State’s organs and its international responsibility’ (ICJ Reports 2007, 43, para. 406) – are unhelpful; they beg the question just how closely the state must be ‘connected’ to the actual violation. For criticism of the ICJ’s ‘apodictic’ reasoning see Cassese, EJIL 18 (2007), 651. 223 Supra, mn. 73. 219

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Article I 81–83 ‘stretches, almost to breaking point, the connection … between the conduct of a State’s organs and its international responsibility’;224 but that it risks ignoring the distinctions between acts of genocide, complicity, incitement and between the international regime against genocide and other rules governing inter-state conduct. Depending on the circumstances, a state ‘globally controlling’ its proxies, but not controlling specific operations, could still be responsible for complicity in genocide, for breaches of the international rules against indirect uses of force, and most certainly would have violated the prohibition against intervention.225 (That some of these breaches could not be raised in proceedings based on Article IX, no doubt raises problems for litigants, but cannot result in a modification of general rules of attribution.) A broader, ‘global control’ test for attribution is likely to blur the lines between these different rules. For that reason, the more specific test favoured by the ICJ and ILC is persuasive.226 d. Interim conclusion 82

In one single phrase, Article I imposes upon state parties to the Convention three essential – and demanding – obligations. They must prevent genocide irrespective of where it occurs; they must punish its perpetrators; and they must not commit genocide nor any of the acts mentioned in Article III. The first of these – the duty to prevent – is perhaps the most demanding; and much work is needed to specify what precisely it requires in specific settings, and of particular state parties. The duty to punish is explored in subsequent provisions of the Convention; Article I essentially flags its existence without adding detail. By officially recognising the existence of the third obligation – the duty not to commit genocide or other acts mentioned in Article III – the ICJ, in its Bosnian Genocide judgment, has completed the trias of state obligations of Article I. This is an important clarification; yet there remains uncertainty regarding the precise obligations of state parties in relation to complicity, conspiracy, attempt and incitement. 3. Consequences of breaching Article I

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The Genocide Convention does not spell out the consequences of violations of Article I, but in Articles VIII and IX merely refers to particular means for responding to breaches. This is by no means unusual: few international treaties lay down rules on remedies; the consequences of treaty breaches form part of the international regime of state responsibility, which – as has been noted above – is set out mainly in the ILC’s Articles on State Responsibility of 2001. As general rules, the Articles do not specifically address consequences of genocide, however some provisions deal with particularly egregious breaches of international law (‘aggravated responsibility’). Taken together, the general rules on responsibility and 224

See ICJ Reports 2007, 43, para. 406. In Nicaragua, conduct by the contra rebels that was not attributable to the United States as ‘their’ use of force still violated the principle of non-intervention and the rules against supporting rebels. As the ILC notes, ‘while the United States was held responsible for its own support for the contras, only in certain individual instances were the acts of the contras themselves held attributable to it, based upon actual participation of and directions given by that State’ (commentary to Article 8 ASR, para. 4: YbILC 2001, vol. II/2, 47). 226 For further detail contrast the arguments advanced by Milanovic, EJIL 17 (2006), especially 583–8; to those of Cassese, EJIL 18 (2007), 653–67. 225

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selected provisions on aggravated responsibility make up a regime of ‘state responsibility for genocide (and related acts)’, which is of considerable flexibility (addressed in section a.). This flexibility, in turn, is increased by the fact that responsibility for genocide is hardly ever addressed in organised institutionalised processes (section b.) a. Consequences of wrongful conduct Consequences of wrongful conduct are set out in Part Two of the ILC’s text on 84 state responsibility.227 The various provisions of this part spell out general principles governing remedies, with a separate chapter dedicated to addressing consequences of serious breaches obligations arising under peremptory norms of general international law.228 The essence of this remedies regime can be summarised in three steps. First, states responsible for breaches of international law are obliged to cease 85 wrongful conduct that is on-going.229 This is true for each of the three duties set out in Article I, even though the content of the duty of cessation depends on the circumstances.230 Obviously, as a ‘first requirement in eliminating the consequences of wrongful conduct’,231 acts of genocide (or related acts) – violating the duty not to commit genocide – have to stop. A state party failing to punish perpetrators must do so, for example by ‘transfer[ring] individuals accused of genocide or any of those other acts for trial by [an international criminal tribunal]’.232 And state parties failing to prevent acts of genocide must stop being passive, and do what the (context-specific) duty requires of them. All this illustrates the function of cessation, which is ‘to put an end to a violation of international law and to safeguard the continuing validity and effectiveness of the underlying primary rule’.233 In this respect it is a forward-looking remedy. Second, states responsible for breaches of Article I are required make reparation, 86 designed to ‘wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed’.234 It is obvious that in the case of genocide, this will hardly ever be possible; all that can be hoped for is a remedy that goes some way towards a return to normalcy. In determining what is required, the law of responsibility distinguishes three forms of reparation; depending on the circumstances, it can consist of restitution, compensation and/or satisfaction.235 Pursuant to Article 35 ASR, restitution is designed to ‘re-establish the situation which existed before the wrongful act was committed’: the focus is on the status quo ante. This may involve a range of remedies: national laws may be rescinded; forcibly transferred children returned; 227 Articles 28–41 ASR. For a succinct overview see notably Higgins, in: Crawford/Pellet/Olleson, International Responsibility, 537. 228 See Articles 40–41 ASR. 229 Article 30 lit. (a) ASR. 230 See commentary to Article 30 ASR, para. 2: ‘Cessation is thus relevant to all wrongful acts extending in time ‘regardless of whether the conduct of a State is an action or an omission’’ (YbILC 2001, vol. II/2, 88–9; citing the Rainbow Warrior award). 231 Commentary to Article 30 ASR, para. 5 (YbILC 2001, vol. II/2, 89). 232 Bosnian Genocide case (merits), ICJ Reports 2007, 43, para. 471(8). 233 ILC, commentary to Article 30 ASR, para. 5 (YbILC 2001, vol. II/2, 89). 234 PCIJ, Factory at Chorzo ´ w (merits), PCIJ Ser A No 17, para. 47. 235 Shelton, in: Shelton, Encyclopedia, 885–6, gives an overview focused on reparation for international crimes.

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Article I 86–88 prisoners released; homes or churches rebuilt.236 But often, restitution will simply not be possible: lives or other legal values destroyed through genocide are lost irredeemably; a responsible state is typically not able to repair damage committed on foreign soil; and where a state failed to prevent genocide (which then took place), the consequences of that particular wrongful act simply cannot be ‘undone’. As was noted by two commentators: ‘Although there is no reason for excluding the primacy of restitution with regard to gross violations of human rights, its usefulness may be limited, in practice, by the specific type of harm caused by these kinds of wrongs. In effect, genocide and crimes against humanity cause harm, first and foremost, to immaterial and unique interests, such as dignity, personal integrity, and liberty. These cannot be restored to their original status once they are impaired.’237

Where restitution is impossible (or where the victims elect otherwise), reparation takes the form of compensation and/or satisfaction. As detailed in Article 36 ASR, compensation is designed to remedy damages that can be financially assessed and that arise as a direct (and certain) consequence of the breach of international law.238 As such, it can be applied notably to material losses resulting from acts of genocide, including the loss of lives, as these can often be directly linked to the actual breach of Article I’s duty not to commit genocide.239 By contrast, where a state party violates its duty to punish perpetrators, compensation is of lesser relevance; this will typically be a matter for cessation or restitution/satisfaction. As regards a state’s failure to prevent genocide, causality will be the main hurdle, especially as the scope of the duty to prevent is cast so wide and as responsibility for failure to prevent will exist alongside another actor’s actual commission of genocide. In the Bosnian Genocide case, the ICJ for example firmly stated that compensation only covered losses that were directly and certainly caused by a failure to prevent. Where it could not be clearly established that a state could actually have prevented the genocide, compensation was not the appropriate remedy.240 88 Pursuant to Article 37, satisfaction is the appropriate form of reparation to ‘repair’ non-material damage resulting from wrongful conduct. This can take the form of an apology, of guarantees against future breaches, or of an inquiry into the causes of a breach.241 In judicial proceedings, a court judgment declaring conduct to 87

236 For further examples, see the ILC’s commentary to Article 35 ASR (YbILC 2001, vol. II/2, 96–8). 237 Sardaro/Lemmens, in: Shelton, Encyclopedia, 911. 238 For details see Barker, in: Crawford/Pellet/Olleson, International Responsibility, 599. In the Lusitania case, Umpire Parker formulated the basic principle in the following terms: ‘The fundamental concept of ‘damages’ is … reparation for a loss suffered; a judicially ascertained compensation for wrong. The remedy should be commensurate with the loss, so that the injured party may be made whole’ (RIAA VII, 32, 39). 239 Shelton, in: Shelton, Encyclopedia, 886. 240 See ICJ Reports 2007, 43, para. 462: ‘[While] the Respondent did have significant means of influencing the Bosnian Serb military and political authorities which it could, and therefore should, have employed in an attempt to prevent the atrocities, but it has not been shown that, in the specific context of these events, those means would have sufficed to achieve the result which the Respondent should have sought. Since the Court cannot therefore regard as proven a causal nexus between the Respondent’s violation of its obligation of prevention and the damage resulting from the genocide at Srebrenica, financial compensation is not the appropriate form of reparation for the breach of the obligation to prevent genocide.’ This has been criticised as too rigid an approach: see Tomuschat, JIntCrimJust 5 (2007), 905; Milanovic, EJIL 18 (2007), 689–91. 241 See the ILC’s commentary to Article 37 ASR (YbILC 2001, vol. II/2, 105–7) for details.

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be illegal may in itself considered to amount to satisfaction.242 Often, satisfaction is little more than a symbolic gesture; and yet – precisely because acts of genocide simply cannot be unmade – such symbolic action is an important step in the remedial process.243 The same is true for a final, related, remedy set out in the ILC’s Articles, namely guarantees and assurances of non-repetition. Like cessation, these are forward-looking; but like restitution and satisfaction, their precise content is context-specific: public pledges to respect a victim group could be one form; laws enshrining ethnic tolerance or ensuring representation of a victim group another.244 In the system of remedies set out in the ILC’s text, guarantees and assurances are clearly exceptional, and practice so far has remained scarce. Third, in addition to the general rules on remedies, the ILC’s text recognises 89 special consequences triggered by particularly grave breaches of international law. These reflect the desire for an accentuated regime of responsibility that recognises categorical distinctions between breaches, depending on their gravity. In the debates preceding the adoption of the ILC’s text, acts of genocide were typically referred to as a clear example of such a particularly grave breach – culminating in the plea that international law could not treat genocide like any breach of bilateral treaty.245 At an early stage of the ILC’s debates, the concept of ‘state crimes’ was to accommodate that desire for accentuation.246 Once a ‘criminal’ approach had proved to be unacceptable, the ILC, in more neutral terminology, agreed on special consequences triggered by serious breaches of obligation arising under peremptory norms of general international law, such as rules of jus cogens.247 As is clear from the ILC’s commentary, the prohibition against genocide was clearly considered to fall within that category.248 Given the amount of debate preceding its adoption, the substance of the special 90 consequences regime is disappointingly modest.249 Article 41 ASR, which spells out special consequences, does not impose any additional obligations on the responsible state; instead its focus is on third states. These third states are under two extra obligations: they must not recognise as lawful a situation created by a serious 242 See e. g. Corfu Channel case, ICJ Reports 1949, 4, paras 35–6; and (for proceedings under Article IX), (Bosnian) Genocide case (merits), ICJ Reports 2007, 43, para. 463. 243 Forms of satisfaction might e. g. include official apologies or the setting up of an inquiry or a trust fund benefiting victims: see ILC, commentary to Article 37 ASR, para. 5 (YbILC 2001, vol. II/ 2, 106). 244 See Article 30 lit. b ASR and commentary: YbILC 2001, vol. II/2, 88–91. 245 See e. g. Pellet, EJIL 10 (1999), 426: ‘it is absolutely unacceptable to assimilate purely and simply a genocide and an ‘ordinary’ breach of international law, say a breach of a bilateral trade agreement. … [I]t seems obvious, evident, necessary, and indeed indispensable that the consequences deriving from these two acts be clearly differentiated.’ To some extent, this argument was always misleading: even without a special regime for particular grave breaches, under the general rules an act of genocide would have triggered levels of compensation and forms of restitutions different from those required for treaty breaches. The plea was really one for a distinction going reflecting different categories of wrongfulness. 246 See the references supra, mn. 62. 247 Wyler/Castellanos-Jankiewicz, 394–400, as well as Tams, Zao ¨ RV 62 (2002), 770–5, provide summaries of developments. 248 ILC, commentary to Article 40 ASR, para. 4 (in YbILC 2001, vol. II/2, 112). The matter is much more problematic with respect to the duties to prevent and punish genocide. 249 Milanovic speaks of ‘a heavily watered down version of the previous draft’ (EJIL 17 (2006), 563). For details see Tams, Zao¨RV 2002, 773–5.

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Article I 90, 91 breach, nor render aid or assistance in maintaining such a situation.250 In addition, they ‘shall cooperate to bring to an end through lawful means any serious breach’.251 To a large extent, these obligations could be derived from Article I itself: state cooperation to bring to an end serious breaches is closely related (but not formulated as strongly) as the duty to prevent genocide; and just as that duty, it is restricted to ‘lawful means’.252 By the same token, the duty not to render aid or assistance can perhaps be seen as akin to the prohibition against complicity in genocide.253 Of the various ‘special consequences’, the duty not to recognise situations brought about by genocide is perhaps the only tangible addition to the obligations imposed by the Genocide Convention and general international law. Depending on the circumstances, this may translate into a duty not to recognise territorial changes brought about by acts of genocide, or the effects of discriminatory policies (such as ethnic cleansing; confiscation of property; withdrawal of citizenship) carried out with genocidal intent.254 Yet as the ILC’s commentary (citing to the ICJ’s Namibia opinion) clarifies, the duty not to recognise is not unqualified; third states could very well recognise official ‘acts, such as, for instance, the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory’.255 b. Implementing responsibility 91

The regime of remedies summarised in the preceding paragraphs has been devised in diplomatic practice and arbitral and judicial proceedings addressing specific wrongful acts. Through the work of the ILC in particular, it has been translated into general rules applicable, in principle, to all forms of wrongful conduct (or – with respect to the special consequences of non-recognition etc. – to all particularly serious breaches of international law). The consequences set out by the ILC are automatic consequences: a state violating Article I is under an automatic duty to cease its wrongful conduct and to make reparation.256 However, in order to activate or enforce the duties of cessation and reparation, the state’s responsibility needs to be invoked – cessation and reparation must in practice be 250

Article 41 para. 2 ASR (in YbILC 2001, vol. II/2, 114). Article 41 para. 1 ASR (in YbILC 2001, vol. II/2, 113). 252 ILC, commentary to Article 41 ASR, para. 3: ‘Such cooperation must be through lawful means, the choice of which will depend on the circumstances of the given situation. It is, however, made clear that the obligation to cooperate applies to States whether or not they are individually affected by the serious breach’ (YbILC 2001, vol. II/2, 114). 253 See ILC, commentary to Article 41 ASR, para. 10 (YbILC 2001, vol. II/2, 115), where the Commission refers to Article 16 ASR which recognises, as a general matter, responsibility for aid or assistance in the commission of another State’s wrongful conduct – the closest ‘State responsibility equivalent’ to complicity. 254 Talmon, in: Tomuschat/Thouvenin, Fundamental Rules of Int’l Legal Order, 99, provides a thorough analysis. 255 ILC, commentary to Article 41 ASR, para. 10 (YbILC 2001, vol. II/2, 115, citing ICJ Reports 1971, 16, para. 126). 256 In its introductory commentary to Part Two of the Articles on State Responsibility, the ILC notes: ‘international law attributes to the responsible State new obligations, and in particular the obligation to make reparation for the harmful consequences flowing from that act’ (YbILC 2001, vol. II/2, 87). In even clearer terms, the introductory commentary to Part Three (addressing implementation) states: ‘State responsibility arises under international law independently of its invocation by another State’ (YbILC 2001, vol. II/2, 116). 251

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sought to be obtained.257 In fact, very often, it may be politically unwise, or inconvenient, to press charges for breaches, especially where a state party has violated its duty to prevent genocide, or the duty to punish perpetrators.258 Even where claims are put forward, the implementation of state responsibility for genocide can be a cumbersome process; and the remedies that are obtained in practice very much reflect this. Where responsibility is implemented in proceedings before international courts 92 and tribunals – for example such as those brought on the basis of Article IX of the Convention – the regime of Part Two is typically very relevant. However, the judicial implementation of state responsibility for genocide is relatively rare. Only states can bring proceedings before the ICJ, which severely reduces the Court’s role.259 Victim groups for instance could simply not bring ICJ proceedings in response to genocidal acts committed by ‘their’ state. Unlike under other humanitarian treaties, the Convention does not set up a regime of direct enforcement, does not grant victims access to any other judicial or quasi-judicial treaty body that could hear claims against their state. Rights of victim groups could very well be taken up by other state parties to the Convention, in proceedings brought under Article IX.260 But as is noted in the commentary to that provision, ‘altruistic’ ICJ proceedings brought in defence of rights of others (as opposed to the interests of the claimant state) are rare.261 This is one aspect explaining the relative dearth of international judicial proceedings relating to genocide, which so far have taken place mainly where acts of genocide were committed – or alleged to have been committed – by a one state against another state. Typically, international responsibility – for genocide just as in other fields – is 93 invoked, not in court, but through diplomatic and political processes. These are diverse and manifold, ranging from public pressure by civil society to conduct by international organisations – including UN action as encouraged or mandated by Article VIII of the Convention. In some instances, such diplomatic and political forms of implementing state responsibility for genocide can be very effective; in others the struggle for remedies is frustrating. As diplomatic and political processes of implementing responsibility are not necessarily conducted in a formalised and regularised way, the regime of remedies set out in Part Two of the ILC’s text is generally of lesser relevance. In fact, typically the focus of international action is very much on stopping or preventing genocide – or, in the terminology of the ILC’s text, on the cessation of wrongful conduct. This is not specific to genocide, as many controversies about responsibility are really disputes as to cessation;262 however, 257 This is implicit in Article 43 ASR, pursuant to which ‘An injured State which invokes the responsibility of another State shall give notice of its claim to that State’, especially specifying ‘(a) the conduct that the responsible State should take in order to cease the wrongful act, if it is continuing; (b) what form reparation should take in accordance with the provisions of Part Two’ (YbILC 2001, vol. II/2, 119). 258 See supra, fn. 139, for brief reference to Bosnia’s brief entertainment of formal claims against the United Kingdom for breach of the duty to prevent genocide. As a general rule, those dependent on outside help will not choose to sue, or formally claim from, potential supporters. 259 The following points are explored in the Introduction, mn. 26, and Article IX, mn. 18. 260 See Article IX, mns 18, 28–32. 261 Article IX, mn. 32. 262 As the ILC’s commentary notes, ‘[c]essation is often the main focus of the controversy produced by conduct in breach of an international obligation. … By contrast, reparation,

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Article I 93, 94 because of the destructive potential of genocidal violence, ensuring cessation becomes decisive. Especially where individual breaches of international law are part of long-standing campaigns or armed conflict involving large numbers of perpetrators and victims, there is a tendency to deal with restitution or compensation through mass claims procedures, through lump-sum agreements or as part of wider settlements – and the treatment of genocide is no exception to this.263 This is likely to ‘undersell’ the rights to reparation of individual victims and therefore hardly a satisfactory solution.264 94 Still, where the international community musters the political will, international law permits highly effective responses against genocide.265 The UN Security Council can order sanctions against states and individuals.266 Regional organisations can play a highly influential role. Outside institutionalised action, individual states whose citizens have been affected by another state’s genocidal acts can resort to countermeasures267 or – where acts of genocide form part of an armed attack – take military measures of self-defence. What is more, as the obligation not to commit genocide is owed to the international community as a whole, each state – as Article 48 of the ILC’s text puts it – ‘may claim from the responsible State: (a) cessation of the internationally wrongful act, and assurances and guarantees of non-repetition in accordance with article 30; and (b) performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured State or of the beneficiaries of the obligation breached.’ With respect to genocide more particularly, the High Level Panel on Threats, Challenges and Change of the United Nations was unequivocal that ‘[t]he principle of non-intervention in internal affairs cannot be used to protect genocidal acts …, which can properly be considered a threat to international security’.268 While the matter remains disputed, the better arguments suggest that where demands in the sense of Article 48 are ignored, each and every state can take coercive measures short of war, such as asset freezes, travel bans, trade embargoes, diplomatic sanctions and the like, in order to force the responsible state back into compliance.269 All this suggests that international law does not stand in the way of effective responses against genocide. important though it is in many cases, may not be the central issue in a dispute between States as to questions of responsibility’ (Commentary to Article 30 ASR, para. 4; YbILC 2001, vol. II/2, 89; footnotes omitted). 263 For much material on mass claims processes following mass atrocities (including genocide) see the contributions to Ferstman/Goetz/Stephens, Reparations. 264 Lisbeth Zegveld survey options of seeking ‘Compensation for Victims of Genocide’ (as the title of her contribution has it): Zegveld, Compensation, in: van der Wilt et al., Genocide Convention Legacy, 97. 265 For more on the following see Wouters/Verhoeven, IntCrimLRev 5 (2005), 401. 266 See Introduction, mn. 3. 267 That is, proportionate ‘counter-coercion’ designed to force the other State back into complying with international law. For a summary of the regime see Alland, in: Crawford/Pellet/Olleson, International Responsibility, 1127; and see Articles 49–54 of the ILC’s Articles on State Responsibility. 268 High Level Panel Report, para. 200. 269 The matter is much disputed; but practice suggests that in response to egregious breaches (including genocide), States not infrequently take countermeasures: for a survey of practice see

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In one respect, though, it does: there is insufficient support, under international 95 law, for the proposition that states should be allowed to use force unilaterally in order to save foreign citizens abroad from acts of genocide.270 To be sure, where the Security Council authorises the use of force, states are called upon to act forcibly. However, in the absence of a Security Council authorisation, the use of force abroad, whatever the motive, will amount to a violation of Article 2 para. 4 of the UN Charter prohibiting the use of force in international relations. As this is a controversial outcome, arguments for the recognition of a right of unilateral humanitarian intervention271 have been advanced for decades; yet international law continues to view them sceptically. The UN Charter regime emphasis the outlawing of war and military force. It accepts unilateral resort to force in selfdefence; but otherwise (not without justification) emphasises the risk of abuse. And while every crisis – Rwanda, Kosovo, Darfur – prompts activists to argue for unilateral forcible intervention, states have so far affirmed the existing regime. The 2005 Summit Outcome document, UN member states emphasised that where the prevention of genocide required forcible conduct, this would have to be authorised within the UN’s collective security system: ‘The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.’272

A few years earlier, in the wake of the Kosovo campaign (in which some western states had invoked the concept of humanitarian intervention to justify their recourse to force), the Non-Aligned Movement (representing well over 120 countries) had unequivocally ‘reject[ed] the so-called ‘right’ of humanitarian intervention, which has no legal basis in the United Nations Charter or in the general principles of international law’.273 Finally, in its report on Threats, Challenges and Change, the UN High Level Panel (referring specifically to Article I of the ConvenTams, Obligations Erga Omnes, 198–251; Dawidowicz, BYIL 77 (2006), 333; Sicilianos, in: Crawford/Pellet/Olleson, International Responsibility, 1137. 270 The following is an extremely condensed summary of a highly complex question, which cannot be properly assessed in the framework of this commentary. From the abundant literature see Lowe/Tzanakopoulos, Humanitarian Intervention, in: MPEPIL; Franck, Recourse to Force, especially paras 135–73; Tams, Humanitarian Uses of Force, 359; and the various contributions to Holzgrefe/Keohane, Humanitarian Intervention. 271 The term is used here in a narrow sense, denoting ‘an autonomous justification for the use of armed force in another State distinct from other legal justifications. Humanitarian intervention in this narrower sense can be defined as the use of force to protect people in another State from gross and systematic human rights violations committed against them, or more generally to avert a humanitarian catastrophe, when the target State is unwilling or unable to act’ (Lowe/Tzanakopoulos, Humanitarian Intervention, in: MPEPIL, para. 3). 272 GA Res. 60/1 (2005), para. 139. 273 Non-Aligned Movement, Final Communique ´ of the Meeting of Ministers for Foreign Affairs, New York, 23 September 1999, para. 171 (http://www.nam.gov.za/minmeet/newyorkcom.htm). This was re-affirmed verbatim by the G-77 member States in the ‘Declaration of the South Summit’ (Havana, 10–14 April 2000), para. 54 (http://www.g77.org/summit/Declaration_G77Summit.htm).

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Article I 95–99 tion) underlined that ‘genocide anywhere is a threat to the security of all and should never be tolerated’ – but then exclusively discussed collective military sanctions authorised by the Security Council.274 96 None of this needs to be seen as satisfactory; and the debate about humanitarian uses of force – whether under the notion of ‘humanitarian intervention’ or as part of a broader debate about the ‘responsibility to protect’ will certainly continue. Yet it does seem increasingly difficult at this point to assert the existence of a legal right to use force abroad to prevent genocide. States actually resorting to force may certainly hope to see the international community turn a blind eye, or ‘condone’ the action where the motive seems genuine and the risk real.275 But this willingness to condone in concrete cases has not led to the recognition of a legal right to use force. 97 The preceding considerations indicate how closely Article I is intertwined with general rules of international law. The regime of state responsibility provides the framework for debates about remedies and enforcement action. The remedies are flexible; and as the judicial invocation of responsibility is the exception, the existing rules are typically applied very flexibly in diplomatic practice. In practice, notwithstanding the emphasis on genocide prevention and the need for reparations, many victims of modern-day genocides have not been able to claim any tangible form of reparation. In many instances, the international response is centred on the cessation of genocidal violence.

III. ‘The Contracting Parties confirm…’ Article I not only declares genocide to be a crime and imposes upon states three important obligations. In what may appear a technical ‘twist’, it does so by way of ‘confirmation’: the provision is formulated as confirming an existing state of law. State parties do not make genocide a crime, but confirm that it ‘is a crime under international law’. This formulation takes up a point made in the first and second preambular recitals,276 which refer back to the Convention’s antecedents (notably General Assembly Resolution 96(I) of 11 December 1946), and prompts questions as to the Convention’s temporal scope of application. As these have been addressed from the perspective of retroactivity elsewhere,277 three remarks may suffice here. 99 First, the fact that state parties confirm the criminal nature of genocide implies a particular view of the state of general international law as it existed in 1948. It asserts that, even before the adoption of the Convention, genocide was a ‘crime under international law’. This view perhaps was ambitious at the time, but has quickly been accepted since.278 As a statement about the state of general interna98

274 High Level Panel Report, paras 200–3. In para. 191, the Panel had stated that ‘in a world full of perceived potential threats, the risk to the global order and the norm of non -intervention on which it continues to be based is simply too great for the legality of unilateral preventive action, as distinct from collectively endorsed action, to be accepted’. 275 For a clear account see Franck, Recourse to Force, 139–70. 276 Namely ‘[h]aving considered the declaration made by the General Assembly of the United Nations in its resolution 96 (I) dated 11 December 1946 that genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world, [and] [r]ecognizing that at all periods of history genocide has inflicted great losses on humanity…’. 277 Introduction, mns 39–49. 278 Already in its 1951 Reservations opinion, the ICJ accepted that ‘the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even

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tional law in 1948, it is of limited relevance to the interpretation and application of the Genocide Convention. Second, it is doubtful whether the state parties also intended to ‘confirm’ pre- 100 existing customary obligations relating to genocide. While it is clear that they intended to confirm the criminal character of genocide, it is much less certain that the duty to prevent and punish it also was to be ‘confirmed’ – in other words that in the view of drafters, duties to prevent and punish genocide also existed, under general international law, prior to the adoption of the Convention. The wording of Article I is not entirely clear, but rather suggests the opposite: while according to the text of Article I, genocide already was a crime in 1948, state parties, though Article I, ‘undertake’ (‘s’engagent’, ‘se comprometent’) to prevent and punish – suggesting that this undertaking begins with the Convention. This suggests that only the criminal character of genocide is being confirmed, while duties relating to it were created in 1948. Third, in assessing the implication of the provision’s declaratory language, it is 101 important to distinguish between (i) the existence of obligations preceding the adoption of the Genocide Convention, and (ii) the retroactive application of the Convention as a treaty. The first does not prejudge the second. If, prior to 1948, genocide was ‘a crime under international law’ (and even if, contrary to the view set out in the preceding paragraph, states would have been required to prevent and punish it under general international law prior to 1948), it does not necessarily mean that the Convention applied retroactively to events preceding its adoption. Quite the contrary, the use of the term ‘confirm’ rather suggests that the Convention sought to lay down pre-existing rule of general international law in the form of treaty law. Whether the Convention as a treaty applies retroactively is a matter to be determined by applying principles governing the temporal scope of application of treaties, notably the customary rule reflected in Article 28 VCLT.279 As has been explored in the introductory commentary,280 the better arguments suggest that – in line with the general presumption against retroactivity – the Convention as a treaty does not apply to events predating its adoption. This may appear to be a technical distinction, but – as other questions depending on the construction of Article I – it has a direct bearing on inter-state proceedings before the ICJ: pursuant to Article IX, ICJ proceedings must involve ‘[d]isputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention’.281 The ICJ’s jurisdiction thus depends not only on the substantive interpretation of Article I, but also on the temporal scope of the Convention. If – as is argued in the Introduction – the Convention does not apply retroactively, ICJ proceedings cannot be brought on the basis of claims predating the adoption of the without any conventional obligation. A second consequence is the universa1 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). The Genocide Convention was therefore intended by the General Assembly and by the contracting parties to be definitely universal in scope’ (ICJ Reports 1951, 15, 23). 279 Article 28 VCLT provides: ‘Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.’ 280 General Introduction, mns 39–49. 281 Emphasis added.

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Article I 101–104 Convention (or its entry into force between the parties). In the light of these considerations, the declaratory language of Article I has less of an impact than may appear at first sight.

D. Concluding Observations 102 Article I is a centrally important provision key to fully understanding the Convention. This was not always so: while the drafters turned the provision from a preambular into an operational clause, they did not fully appreciate its normative potential. This potential has now begun to be exploited, notably through the various stages of the ICJ’s Bosnian Genocide ‘saga’. These proceedings have activated the hitherto dormant duty to prevent and rightly recognised the existence of a treatybased duty not to commit genocide, which completes the trias of obligations imposed by Article I. Yet the unfolding process is at best half-completed. The scope of the various duties remains uncertain. 103 As regards the duty to punish, the ICJ’s strictly territorial construction may have been overly cautious: arguably Article IV can be relied upon to remedy the shortcomings of Article VI. By contrast, the recognition of a duty to prevent genocide and other acts world-wide is extremely ambitious: in order to be operational, this general duty will need to be further specified. As discussed above, it remains to be seen whether any concrete duties to act can be distilled from it – or whether, for genocide outside a state party’s narrow sphere of influence, the duty remains primarily appellative. As regards the duty not to commit genocide, questions of attribution remain decisive, and it remains to be seen whether state responsibility for preparatory or inchoate acts mentioned in Article III lit. (b) to (e) will ever be invoked. 104 All this suggests that the process of unfolding Article I’s normative potential is far from completed. Because of their highly dramatic nature, inter-state allegations of genocide are unlikely to clarify the scope of the various obligations. If anything, one might look to future ICJ proceedings – or perhaps, with respect to the duty to prevent, to debates about the ‘responsibility to protect’ – as catalysts of concretisation. But notwithstanding these uncertainties, Article I fulfils its role reasonably well. It sets the parameters of debate about inter-state obligations imposed by the Genocide Convention. And in enshrining the trias of obligations to prevent, punish and not to commit, it formulates an ambitious programme that provides some normative grounding for the lofty aspirations of the Preamble.

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Article II 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. Table of Contents: mn. A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 I. The basic structure of the crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Protected values. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1. The group’s right to exist . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2. Individual legal interests of group members . . . . . . . . . . . . . . . . . . . . . . . . . . 4 3. Legal interests of the international community . . . . . . . . . . . . . . . . . . . . . . . 7 B. Drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 I. Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 II. Acts of genocide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 III. Intent to destroy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 C. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 I. Material elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 1. Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 a. Common requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 b. Issues of defining groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 aa. Issues of delimitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 bb. ‘Subjective-objective approach’ vs. ‘objective approach’. . . . . . 37 cc. Positive vs. negative definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 c. National group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 d. Ethnical group. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 e. Racial group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 f. Religious group. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 g. Other groups? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 2. Individual acts of genocide. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 a. Killing members of the group. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 b. Causing serious bodily or mental harm to members of the group 66 c. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part. . . . . . 74 d. Imposing measures intended to prevent births within the group 83 e. Forcibly transferring children of the group to another group . . 87 f. ‘Ethnic cleansing’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 II. Mental elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 1. Mental elements of the individual act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 2. Intent to destroy, in whole or in part, a protected group as such . 104 a. Intent to destroy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 aa. The volitional element . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 bb. The cognitive element . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 cc. ‘With’ intent to destroy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 dd. ‘Purpose-based approach’ vs. ‘knowledge-based approach’. . 117 b. In whole or in part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 c. Group as such . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139

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Article II 1

A. Introduction I. The basic structure of the crime 1 Genocide is a complex crime. Besides the broad scope of legal interests the Convention undertakes to protect and the phenomenological intricacies of the macro-criminality it seeks to respond to, this complexity also flows from the definition of the crime itself. Objectively, the crime demands the existence of a national, ethnical, racial or religious group and the carrying-out of an act specified in (sub-)paragraphs (a)-(e). Subjectively, intent and knowledge vis-a`-vis all contextual elements, the perpetrator’s conduct and its consequences are required, as well as, in the case of Article II lit. (d), the ‘specific’ intent relative to the prevention of births within the group. In addition, the perpetrator must have acted ‘with the intent to destroy’ a protected group ‘in whole or in part’. This specific intent-requirement defines genocide as a group-oriented crime and constitutes the centrepiece of its definition. However, its precise content remains highly controversial. Pursuant to the view proposed herein, specific intent involves both a cognitive and a volitional element, the latter normally requiring that the perpetrator’s goal must be the physical, biological or social destruction of the targeted group in whole or in part. These requirements are narrowed in the case of Article II lit. (c), which specifically requires the offender to aim at the group’s physical destruction. The cognitive element demands the perpetrator’s awareness that (a) the given scenario involves a realistic chance of the full or partial destruction of a protected group, and (b) the perpetrator’s act may have a contributive effect to the destructive goal. Finally, the offence requires consideration of the perpetrator’s motives, which finds expression in the words ‘as such’. In contrast to the prevailing approach, it is suggested here that a motivational link is not required between the intended destruction of the group and the individual act. Instead, the intent to destroy must be generated by motives based on the national, ethnical, racial or religious characteristics of the group. For a better overview, this complicated structure can be visualized in the following scheme:

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II. Protected values 1. The group’s right to exist It is recognized as commonplace that the criminalization of genocide seeks, first 2 and foremost, to protect certain groups’ right to exist. This is not only suggested by the very designation of the crime as geno-cide (Greek: genos (gLnoB) – kin, tribe; Latin: occidere/caedere: to kill) and the required intent to destroy, but also expressed by the Resolution 96(1) of 1946, in which the UN General Assembly defined genocide as the ‘denial of the rights of existence of entire human groups’.1 At all stages of the codification process, the protection of the ‘right of existence’ was quoted as the chief purpose of the Convention2 and has met with almost universal acceptance, both in international jurisprudence3 and academic writing,4 since the Convention entered into force. A fundamental controversy exists, however, as to whether the Convention’s protective scope is limited to a groups’ physical and biological existence,5 or extends to its social existence as well.6 On closer inspection, for the following reasons, the latter approach is preferable. Firstly, the restrictive approach fails to explain why genocide can be committed by causing serious mental harm to members of the group under Article II lit. (b). From a semantic perspective, ‘physical’ usually refers to the human body or, in a wider sense, to all elements of the material world. In this respect, a group’s physis is identical to the physical conditions of the human members it is composed of. As a consequence, it should be difficult to establish that a group’s physis has been harmed by an act which left the physis of all group members intact, and it appears impossible to explain why the protection of the physical existence of groups should call for the penalization of such acts. The protection of the biological aspect of a group’s existence (i. e. 1

UN Doc. A/RES/1/96. Secretariat Draft Commentary (UN Doc. E/447), 23, 27; UN Doc. E/AC.25/SR.3 (Mr. Marcus, World Jewish Congress); UN Doc. E/AC.25/SR.10 (Mr. Rudzinski, Poland); UN Doc. E/SR.218 (Mr. Stephens, Canada); ibid., (Mr. Katz-Suchy: ‘right to free existence and development’); UN Doc. A/C.6/SR.74 (Mr. Gross, United States of America). 3 See, for instance: ICJ, Reservations opinion, ICJ Reports 1951, 23: ‘... its object ... is to safeguard the very existence of certain human groups ...’; ICTR Akayesu, TC, 2 September 1998, para. 469; ICTY Jelisic´, TC, 14 December 1999, para. 69; ICTY Krstic´, TC, 2 August 2001, para. 552; ILC Draft Code of Crimes against the Peace and Security of Mankind (1996), Article 17, para. 6 (45): ‘The group itself is the ultimate target or intended victim of this type of massive criminal conduct.’ 4 See, for instance: Werle, Int’l Criminal Law (2nd ed.), mn. 702; Robinson, Genocide Convention, 58; Gil Gil, ZStW 112 (2000), 381, 393. 5 This approach is dominant within international jurisprudence and legal writing. See, e. g.: ICTY Krstic´, TC, 2 August 2001, para. 580; ICTY Tolimir, TC, 12 December 2012, para. 741; ICTR Seromba, TC, 13 December 2006, para. 319; ICJ, Bosnian Genocide case, ICJ Reports 2007, 122, 179 (paras 190, 328); Darfur-Report, UN Doc. S/2005/60, 1 February 2005, paras 515, 517–20; Behrens, in: Behrens/Henham, Elements of Genocide, 70, 82–4; Kreß, EJIL 18 (2007), 619, 626–7; Kreß, JIntCrimJust 3 (2005), 562, 564–5; Kreß, MK, § 6 VStGB, mn. 72; Schabas, Genocide in Int’l Law (2nd ed.), 271–2; Jessberger in: Gaeta, Genocide Convention, 107–8; Becker, Verbrechen gegen die Menschlichkeit, 184; Paul, Kritische Analyse, 298. Similarly: Quigley, Genocide Convention, 103. 6 This approach has particularly been taken by the highest German courts: BGHSt 45 64, 80; BVerfG NJW 2001, 1848, 1850. Amongst scholars, the following advocate the extensive view: Werle, Int’l Criminal Law (2nd ed.), para. 703; Werle, in: Festschrift Ku¨per, 690; Ahmed/Tralmaka, 1 CityU LR (2009), 111; Sirkin, 33 SeattleULRev, (2010), 525–6; Safferling, JuS 2001, 738; Safferling, in: Safferling/Conze, The Genocide Convention Sixty Years after its Adoption, 175–6; Jescheck 66 ZStW (1954) 212–3. 2

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Article II 2, 3 procreation within the group) does not provide an explanation either, as the prevention of births within a group by mentally damaging group members is covered by paragraph (d), and such an interpretation would then render the inclusion of ‘causing of serious mental harm’ in Article II lit. (b) superfluous. Therefore, it only remains to assume that the inclusion of serious mental harm serves to cover detrimental effects on a group’s social texture and its national, ethnic and religious peculiarities. Secondly, the present approach better corresponds to the Convention’s fundamental concern of upholding the cultural, spiritual and genetic multiplicity of mankind, which shall be addressed more specifically below,7 and which is no less imperilled by the social dissolution of a group than by the physical destruction of the group’s members.8 Thirdly, the fact that Article II lit. (c) explicitly demands measures ‘calculated to bring about its [the group’s] physical destruction’ allows to conclude e contrario that the general term ‘destruction’ in the chapeau is broader and extends to dissolving the social bonds between groupmembers.9 And fourthly, the travaux pre´paratoires demonstrate that, by extending paragraph (b) to mental harm, the Sixth Committee consciously chose to widen the protective scope of Article II beyond the physical (and biological) existence of groups, as this consequence had been discussed during the 81st meeting10 prior to the vote on the inclusion of this provision. 3 Conversely, the arguments brought forward in favour of the restrictive approach turn out to be weak in substance. In Krstic´, the ICTY Trial Chamber felt that the extension of the notion of genocide to the social destruction of groups would amount to a breach of the customary principle of nullum crimen sine lege which ‘limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group.’11 Ironically, the chosen formulation itself features a rather loose consideration of the wording, as of all of the five modes of genocidal acts laid out in Article II, only paragraph (c) explicitly seeks the physical destruction of the group (in whole or in part). The wording of the remaining paragraphs is, however, sufficiently open as to be able to easily encompass the social destruction of groups as well.12 A stronger argument is put forward by Claus Kreß, who demonstrates a far-reaching consequence of the current approach which is not reconcilable with the aspiration at the heart of the international criminalization of genocide:13 If the intent to socially destroy a group were sufficient to satisfy the intent requirement under Article II, genocide would be committed if, for instance, a perpetrator kills members of a protected group, thereby furthering an overall campaign which he is aware is directed to the dissolution of the group ‘merely’ through the systematic destruction of the group’s cultural heritage.14 However, even on the basis of the assumption that the Convention primarily seeks to prevent and 7

Infra, mn. 8. This is conceded by Kreß, IntCrimLRev 6 (2006), 461, 486. 9 Jescheck, 66 ZStW (1954), 213. For a different opinion, see: Kreß, IntCrimLRev 6 (2006), 461, 486–7. 10 UN Doc. A/C.6/SR.81, 178, (Mr. Fitzmaurice, United Kingdom). 11 ICTY Krstic ´, TC, 2 August 2001, para. 580. 12 Werle (Int’l Criminal Law (2nd ed.), mn. 704) rightly notes that ‘[T]o satisfy the principle [of nullum crimen sine lege], it suffices that the social existence of the group is only protected against attacks laid out in the definition of the crime.’ 13 Kreß, IntCrimLRev 6 (2006), 461, 487; Kreß, MK, § 6 VStGB, mn. 72. 14 Kreß, IntCrimLRev 6 (2006), 461, 487; Kreß, MK, § 6 VStGB, mn. 72. 8

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punish the physical or biological destruction of groups, the penalization of the perpetrator in this scenario appears well justified if viewed in the context of Article III lit. (c) – direct and public incitement to commit genocide, and Article III lit. (d) – attempt to commit genocide. These modes of liability especially highlight the Convention’s effort to prevent genocide at a timely stage by averting potential trigger incidents. It stands to reason that, in light of a large scale campaign of ‘cultural genocide’ and collateral hate propaganda, the first physical attacks on members of the group, if they go unpunished, would likely open the floodgates to random atrocities. The protective scope of Article II should therefore be seen as encompassing both a group’s physical and social existence. 2. Individual legal interests of group members The Convention also seeks to safeguard the legal interests of all individual 4 group members who are infringed by the acts enumerated in Article II (life, physical and mental integrity, procreation, family, freedom of movement).15 In addition, some authors cite human dignity as one of the values protected by the Convention.16 In order to clarify the content of this right, Werle invokes the socalled ‘object theory’ which was originally deduced by Wintrich and Du¨rig upon Kantian principles17 and features predominantly within German jurisprudence. Pursuant to this approach, human dignity is violated if the specific individual is instrumentalized and degraded to the status of a mere object, a ‘substitutable dimension.’18 Along these lines, Werle argues that criminal acts against individuals committed for the sole purpose of destroying the group they belong to degrade the individual victims to objects of the perpetrator’s genocidal intent and thus amount to infringements of their human dignity.19 However, there is reason to question whether the concept of human dignity should be considered alongside genocide at all. Quite incontrovertibly, universality and (from a natural law perspective) originality are the innermost features of human dignity. Yet within the regime of the Convention, individual protection is neither granted universally (since individuals not pertaining to protected groups are left unprotected) nor originally (since the protection of group-members is merely derived from the protection of groups), and one may thus wonder if such weak protection of the individual still equates in any way to the illustrious concept of human dignity. Moreover, pushing the ‘object approach’ to its extreme, one could even argue that the concept of genocide itself amounts to a violation of human dignity, as it values individuals solely in their capacity as group-members, reduces them to instruments for the protection of the group they belong to, and hence ‘depersonalizes the violence’.20

15

Kreß, MK, § 6 VStGB, mn. 2. Satzger, Int’l and Eur. Crim. Law, § 14 mn. 7 (247); Werle, Int’l Criminal Law (2nd ed.), mn. 706; See also: ICTY Krstic´, TC, 2 August 2001, para. 510. 17 Wintrich, in: Festschrift Laforet, 235–6; Du ¨ rig, in: Maunz/Du¨rig, Grundgesetz, Artikel 1 Absatz 1, mns 28, 34. 18 Petermann, in: Bayertz, Sanctity of Life, 123–4. 19 Werle, Int’l Criminal Law (2nd ed.), mn. 706. 20 See: Murray, GoJIL 3 (2011), 589, 611. 16

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Article II 5, 6 As mentioned above, the protection of individual interests marks a subsidiary purpose of the Convention and is strictly an accessory to the protection of groups.21 From the habitual person-centric perspective of international criminal law, this peculiar feature of genocide brings a range of dire consequences in its wake. Even the very worst attacks on individuals are not covered by Article II unless they are committed with genocidal intent, and the Convention remains indifferent towards the intentional destruction of large numbers of a group’s members as long as the doomed fraction falls short of constituting a sufficient ‘part’ of the group. The latter aspect leads to the remarkable paradox that equal legal treatment of groups, irrespective of their numeric size, gives rise to unequal legal protection of the members of the respective groups: While the provisions of the Convention may not extend, for example, to the intentional extermination of one thousand members of a large group, attacks directed against the same number of individuals of a smaller group may fall within the protective scope of Article II. Further, another idiosyncrasy surfaces in the lamentable case of total annihilation of a group: As soon as the number of remaining group members falls below the required level, the Convention majestically turns away and abandons the ‘last of the Mohicans’ to their fate. 6 The inclusion of individual rights in the protective scope of Article II has not gone entirely unchallenged. In order to lend support to the opposite approach, the German Federal Court of Justice (Bundesgerichtshof) argued that ge´nocidaires direct their attacks at persons solely in their capacity as group-members and not as individuals.22 However, it is not convincing in providing the reason why the worthiness of a victim for protection should be dependent on the perspective of the perpetrator,23 and even if this is the case, why the aggravating factor of complete contempt for the victims’ individuality should lead to the exclusion rather than the inclusion of the individuals’ legal interests. Moreover, the inclusion of individual rights is supported by the historical kinship between genocide and crimes against humanity, the latter of which uncontestably cover the protection of individual interests.24 The drafting documents further suggest that the protection of individuals was largely regarded as self-evident during the discussions of the Sixth Committee.25 One further indication may be drawn from the fact that the Committee abandoned the inclusion of provisions relating to cultural genocide, which would have targeted the group itself and not primarily its members.26 5

21 ICTY Popovic ´ et al., TC, 10 June 2010, para. 821: ‘[T]he ultimate victim of the crime of genocide is the group.’ 22 BGH, judgment of 30 April 1999 (3 StR 215/98), NStZ 1999, 401. 23 Kreß, IntCrimLRev 6 (2006), 465–6. 24 Werle, Int’l Criminal Law (2nd ed.), mn. 791; Kreß, MK, § 6 VStGB, mn. 2. 25 UN Doc. A/C.6/SR.66, 33 (Mr. Azkoul, Lebanon): ‘... protection of the human group as such and not only of the individual ...’ (emphasis added); ibid., 99 (Mr. Abdoh, Iran), 111 (Mr. Lachs, Poland). 26 For example, Secretariat Draft Commentary (UN Doc. E/447), Article I (II) para. 3 lit. (e): ‘Systematic destruction of historical or religious monuments or their diversion to alien uses, destruction or dispersion of documents and objects of historical, artistic, or religious value, and of objects used in religious worship.’ See also Kreß, MK, § 6 VStGB, mn. 2, who refers to UN Doc. A/ C.6/SR.83, 197 (Mr. Petren, Sweden).

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3. Legal interests of the international community Alongside the legal interests of groups and individuals, certain specific interests of 7 the international community as a whole are also protected by the Convention. Primarily this applies to the international core values of peace and security. This may appear questionable at first, considering that a genocidal scenario may well remain within the borders of a State and would, in such cases, at best give rise to an ‘international disturbance’ but not to an immediate threat to international peace and security, in the narrower sense of the term.27 Nevertheless, a far-reaching consensus exists amongst scholars that the perpetrator’s intention to destroy a group, in whole or in part, creates sufficient linkage between genocide and a threat to peace and security, irrespective of the circumstances in concreto.28 Multiple indications in international law and legal practice support the accuracy of this perspective, such as: (a) the preamble of the ICC-Statute, citing peace and security (along with the cryptic ‘well-being’) as the central values protected by the criminalization of, inter alia, genocide under Article 6 ICC-Statute; (b) the labelling of genocide as a crime ‘against the peace and security of mankind’ by the ILC29; (c) the ‘responsibility-to-protect’declaration at the World Summit in 2005, holding Chapter VII UN-Charter applicable to cases of genocide, and (d) the recent practice of the UN Security Council in regards to the notion of ‘threat to the peace’ in Article 39 UN-Charter.30 As well as peace and security, the international community’s common interest in 8 maintaining the richness and multiplicity of human groups presents a further value which can be considered to be under the protection of the Convention.31 Even prior to the Convention, Raphael Lemkin made the case for this diversity’s worthiness of protection,32 manifestly inspired by J. Gottfried Herder’s national cosmopolitanism and Giuseppe Mazzini’s romantic concept of each people’s role in the harmonious ‘symphony of nations’33. In 1947, Lemkin further elucidated that ‘[t]he philosophy of the Genocide Convention is based on the formula of the human cosmos. This cosmos consists of four basic groups: national, racial, religious and ethnic. The groups are protected not only by reason of human compassion but also to prevent draining the spiritual resources of mankind.’34 At the very start of the drafting 27

Kreß, IntCrimLRev 6 (2006), 461, 464. Kreß, IntCrimLRev 6 (2006), 465; Kreß, MK, § 6 VStGB, mn. 4; Stahn, KritJ 1999, 352; Vest, ZStW 113 (2001), 476. See also: Pritchard, Der vo¨lkerrechtliche Minderheitenschutz, 50. 29 ICTR Kambanda, TC, 4 September 1998, para. 16; ICTR Serushago, TC, 5 February 1999, para. 15. Similarly: ICTY Kupresˇkic´ et al. TC, 14 January 2000, para. 636: ‘... genocide is an extreme and most inhumane form of persecution’; ICTY Krstic´, AC, 19 April 2004, para. 36: ‘Among the grievous crimes this Tribunal has the duty to punish, the crime of genocide is singled out for special condemnation and opprobrium. The crime is horrific in its scope ....’ For a different view, see: ICTR Kayishema and Ruzindana, AC, 1 June 2001, para. 367: ‘... there is no hierarchy of crimes under the Statute ...’. 30 Kreß, MK, § 6 VStGB, mn. 4. For a focussed analysis of the UN Security Council’s interpreta¨ sterdahl, Threat to Peace, passim. tion of Article 39 UN Charter, see particularly: O 31 For a broad analysis of the ‘continuing contribution of each group to the cultural heritage of all humanity’ as a proteced value under international law, see: Vrdoljak, EJIL 22 (2011), 17–47. 32 Lemkin, Explications additionelles: ‘L’apport de toute collectivite ´ particulie`re dans la culture internationale rentre dans le tre´sor de l’humanite´ entie`re, tout en gardant ses traits caracte´ristiques.’ Lemkin, Internationales Anwaltsblatt 19 (1933), 117–9; Lemkin, Axis Rule, 91. 33 Moses, Raphael Lemkin, Culture and the Concept of Genocide, 23; Kreß, MK, § 6 VStGB, mn. 22. 34 Lemkin, Description of the Project, NYPL, Reel 3, Box 2, Folder 1. See also: Lemkin, AJIL 41 (1947), 145 (147). 28

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Article II 8, 9 process this idea was adopted by the UN GA and found expression in Resolution 96 (I), stating that genocide ‘results in great losses to humanity in the form of cultural and other contributions represented by these human groups’.35 A more recent indication can be gleaned from the preamble of the ICC-Statute, which implicitly signifies the ‘delicate mosaic of the cultures of all peoples pieced together in a shared heritage’ as one of the protected interests under the Statute. In a similar manner, the ICTY Appeals Chamber has confirmed that genocide is a ‘crime against all humankind’, as the perpetrator seeks to ‘deprive humanity of the manifold richness its nationalities, races, ethnicities and religions provide.’36

B. Drafting history I. Group 9 With respect to the group element, the travaux reveal that the notion ‘group’ was not subject to extensive deliberation. The Secretariat Draft defined a ‘human group’ as a ‘certain part of the population whose members have common characteristics distinguishing them from other members of society.’37 Much more concisely, during the 73rd session of the UN GOAR Sixth Committee, the French delegate (Mr. Chaumont) defined a group as an[y] ‘aggregate of individuals’.38 As to the question which groups should fall within the ambit of genocide, a gradual narrowing of the protective scope can be observed during the drafting process: At the outset, the definition provided by the GA Resolution 96 (I) of 11 December 1946 included an opening clause which extended the notion of genocide to scenarios where ‘racial, religious, political, and other groups have been destroyed ...’.39 The Secretariat’s Draft then dropped the indeterminate term of ‘other groups’ and instead added linguistic and national groups to the list,40 followed by the Ad Hoc Committee Draft which dispensed with linguistic groups,41 until ultimately, the Sixth Committee embarked on lengthy discussions as to whether political groups should also be removed from the protected spectrum. The delegate of the United Kingdom (Sir Hartley Shawcross) favored the retention of political groups. He argued that persecution on political grounds was as common a phenomenon as persecution on racial grounds and hence called for equal treatment.42 The Haitian delegate (Mr. Demesmin) stressed that, in combination with the motives-requirement, eliminating political groups would open up a loop-hole in the provision’s scope of protection, since governments would always be able to allege that the extermination of any group had been dictated by political considerations, such as the necessity of quelling an insurrection or maintaining public order.43 On the other hand, numer35 UN Doc. A/96(I) (11. December 1946). See also: UN Doc. A/C.6/SR.74, 106 (Mr. Morozov, Soviet Union). Mr. Morozov advocated the inclusion of ethnical groups, stating: ‘An ethnical group ... was a smaller collectivity than the nation, but one whose existence could nevertheless be of benefit to humanity.’ (Emphasis added). 36 ICTY Krstic ´, AC, 19 April 2004, para. 36. 37 Secretariat Draft Commentary (UN Doc. E/447), 21. 38 UN Doc. A/C.6/SR.73, 90. 39 Emphasis added. 40 Secretariat Draft Commentary (UN Doc. E/447), 5. 41 Ad Hoc Committee Draft Commentary (UN Doc. E/794), 13. 42 UN Doc. A/C.6/SR.69, 60 (Sir Hartley Shawcross, United Kingdom). 43 UN Doc. A/C.6/SR.75, 113 (Mr. Demesmin, Haiti).

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ous arguments were advanced against the retention of political groups: Above all, it was stated that membership in political groups was largely a matter of an individual’s own free will. For this reason political groups were deemed to lack the inner stability and cohesion characteristics ascribed to national, racial and religious groups, the membership of which is largely determined by birth and thereby less mutable.44 Objections that religious denomination is not irreversible but rather constitutes a community of opinion, making religious and political groups45 analogous, were countered by the argument that renunciation of creed is normally associated with greater difficulty than leaving a political party.46 Numerous delegates also feared that the protection of political groups under the Convention would jeopardize its ratification by a large number of states, particularly those with a strong desire to maintain their freedom to suppress internal political disturbances.47 Others admonished the vagueness of the term ‘political’,48 or pointed out that the retention of political groups in the text of the Convention would make it difficult to warrant the exclusion of other less stable entities, such as professional and economic groups.49 The Iranian (Mr. Abdoh) and Polish (Mr. Lachs) delegates argued that group-members whose membership is established by birth appear more vulnerable and thus require a larger measure of protection than those whose membership is based on individual choice.50 Ultimately, during the 128th meeting of the Sixth Committee, the proposal to remove political groups was adopted by 22 to 6 votes, with 12 abstentions. For similar reasons, the same fate was shared by ‘economic groups’, the inclusion 10 of which had been proposed by the United States.51 The Venezuelan representative (Mr. Pe´rez Perozo) announced that he did not know the precise meaning of the term, but if it did not have stable characteristics, his delegation would vote against it.52 Sweden further declared that it would prefer a convention which would not be as wide in scope,53 and thus opposed the inclusion of economic groups.54 In response to a Swedish proposal,55 during its 75th meeting the Sixth Committee 11 added ethnical groups to the draft provision by a narrow vote of 18 to 17, with 11 abstentions. This step, however, should not be mistaken as a substantial move towards the extension of the ambit of genocide, but rather an attempt to neutralize 44 UN Doc. A/C.6/SR.65, 66, 69, 71, 75, 21, 31, 58, 59, 61, 74, 111. Along these lines, see Lemkin, in: Secretariat Draft Commentary (UN Doc. E/447), 22; likewise Ad Hoc Committee Draft Commentary (UN Doc. E/794), 13. 45 UN Doc. A/C.6/SR.75, 114 (Mr. Petren, Sweden); A/C.6/SR.60, 60 (Sir Hartley Shawcross, United Kingdom). 46 UN Doc. A/C.6/SR.69, 61 (Mr. Wikborg, Norway); similarly: A/C.6/SR.74, 99 (Mr. Abdoh, Iran). 47 UN Doc. A/C.6/SR.65, 66, 69, 74, 21, 31, 58, 99. Similarly: Lemkin in: Secretariat Draft Commentary (UN Doc. E/447), 2; likewise Ad Hoc Committee Draft Commentary (UN Doc. E/ 794), 13–4. 48 UN Doc. A/C.6/SR.66, 69, 31, 61. 49 UN Doc. A/C.6/SR.69, 58–9. 50 UN Doc. A/C.6/SR.74, 99 (Mr. Abdoh, Iran); A/C.6/SR.75, 111 (Mr. Lachs, Poland). 51 UN Doc. A/C.6/214. 52 UN Doc. A/C.6/SR.71, 75; similarly ibid., 74 (Mr. Raafat, Egypt). 53 UN Doc. A/C.6/SR.69, 58–9 (Mr. Petren, Sweden); likewise: ibid., 56 (Mr. Amado, Brazil). 54 UN Doc. A/C.6/SR.75, 13 (Mr. Pe ´rez Perozo, Venezuela); ibid., 114 (Mr. Petren, Sweden); 114–5 (Mr. Gross, United States of America). 55 UN Doc. A/C.6/230/Corr.1.

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Article II 11, 12 shortcomings of the terms ‘national’ and ‘racial’. The Swedish delegate (Mr. Petren) submitted that if national group were strictly construed as groups enjoying civic rights in a given State, then the Convention would not extend protection in the event that the respective State ceased to exist or were in a process of formation,56 or where a linguistic group unconnected with an existing state would not be protected as a national group.57 The Haitian delegate (Mr. Demesmin) supported the inclusion of ethnical groups, pointing out the practical difficulties of discerning racial groups in regions where intermingling between racial groups had taken place.58 While some delegates held that racial and ethnical groups were largely congruent,59 others drew a line between groups featuring the same inborn genetic features (racial groups) and groups which could rather be defined by the their traditions and cultural heritage (ethnical groups).60

II. Acts of genocide 12 In seeking to lay out the definition of the actus reus of genocide, the Secretariat draft committee largely resorted to the pioneering work of Lemkin and adopted his distinction between forms of physical, biological and cultural genocide. Under each of these genera, the draft specified a set of acts through which the respective types of genocide could be committed.61 The Ad Hoc Committee drastically simplified the draft’s wording but in essence retained the Secretariat’s recommendations.62 At the Sixth Committee, the question of cultural genocide notably gave rise to intense discussions until, ultimately, the Committee decided, by 25 votes to 16 with 4 abstentions, not to include provisions in the Convention relating to cultural genocide as reflected by Article III of the Ad Hoc Committee’s draft.63 In this context, it must be stressed that although the Sixth Committee often used the term ‘cultural genocide’ synonymously to ‘offences according to Article III of the draft’,64 its adverse decision was specifically directed against the inclusion of this draft Article III, and thus does not necessarily reflect a negative stance towards the concept of cultural genocide as such.65 This is also underlined by the inclusion of ‘forcibly transferring children of the group to another group’ which some Committee members deemed a species of cultural genocide,66 and the criminalization of causing mental harm, which does not target the physical state of a group, but rather 56

UN Doc. A/C.6/SR.73, 97 (Mr. Petren, Sweden). UN Doc. A/C.6/SR.75, 114. 58 UN Doc. A/C.6/SR.75, 115. 59 UN Doc. A/C.6/SR.75, 114 (Mr. Raafat, Egypt); ibid., 114 (Mr. Manini y Rı´os (Uruguay); ibid., 115 (Mr. Kackenbeeck, Belgium). 60 UN Doc. A/C.6/SR.75, 114 (Mr. Petren, Sweden); A/C.6/SR.69, 60 (Sir Hartly Shawcross). 61 Secretariat Draft Commentary (UN Doc. E/447), 25–8. 62 Ad Hoc Committee Draft Commentary (UN Doc. E/794), 14–8. 63 UN Doc. A/C.6/SR.83, 206. 64 UN Doc. A/C.6/SR.83, 193–206. 65 Some members expressly endorsed the concept of cultural genocide in principle, but felt that the formulations under Article III were too vague, or feared that the Convention would not win universal support by states if providing for far-reaching criminalization of cultural genocide. See: UN Doc. A/C.6/SR.83, 196–7 (Mr. Pe´rez Perozo, Venezuela); ibid., 198 (Mr. Federspiel, Denmark); ibid., 199 (Mr. Raafat, Egypt); ibid., 200 (Mr. Lapointe, Canada). 66 UN Doc. A/C.6/SR.83, 191 (Mr. Bartos, Yugoslavia); ibid., 191 Mr. Zourek (Czechoslovakia), who found the placement of the transfer of children in Article II ‘illogical’. 57

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its members’ social capacity to interact and can hence also be regarded as a means of cultural genocide, in the wider sense of the term. The consistent use of the plural form to specify the recipients of genocidal acts 13 (‘members’, ‘births’, ‘children’) in the present text of the Convention was not deliberated during the drafting process. Only one tentative move towards the issue was taken during the 82nd meeting of the Sixth Committee, where the Dutch delegate (Mr. de Beus) wondered whether ‘forced transfer’ [of children] necessarily meant mass transfer.67 The term ‘killing members of the group’ was shaped by the Ad Hoc Committee, 14 who replaced the Secretariat draft’s wording ‘causing the death of members of a group ... with: (a) group massacres or individual executions ...’. At the Sixth Committee, doubts arose as to the accordance of the English term ‘killing’ with the French ‘meurtre’.68 The French delegate (Mr. Spanien) explained that to his understanding ‘killing’ constituted an umbrella term: ‘[I]f it were committed without premeditation, it was an act of homicide, and if it was committed with premeditation, it became and act of murder.’ Proceeding from this definition Mr. Spanien further remarked that the French word ‘meurtre’ was the term closest in meaning to the English word ‘killing’.69 Quite to the contrary, the US delegate Mr. Maktos, who had also chaired the Ad Hoc Committee, noted that the Ad Hoc Committee had chosen the word ‘killing’ because it felt that the idea of intent had been made sufficiently clear in the chapeau of Article II, but that it had never been a question of defining unpremeditated killing as an act of genocide.70 This suggests that by dropping the concept of premeditation in the first part of Article II during its 73rd meeting, the Sixth Committee also altered the sense of ‘killing’ without much reflection. The wording of Article II lit. (b), ‘causing serious bodily or mental harm to 15 members of the group’ emerged from a twofold alteration of the Ad Hoc Committee’s draft version, which had read ‘[i]mpairing the physical integrity of members to the group’. The first modification was made at the instigation of China, which had persistently pushed for the inclusion of acts impairing the mental capacity of group members through narcotic drugs. During discussions at the Ad Hoc Committee, China maintained that in the course of World War II Japan produced 50 tons of heroin with the intention of committing genocide by narcotics.71 At the Sixth Committee, China renewed this effort to extend genocide to acts impairing the mental health of group members.72 This was met with objections from the United Kingdom, whose representative (Mr. Fitzmaurice) remarked that wherever impairment of mental health produced repercussions on physical health, the case could already be subsumed under the present text.73 On the other hand, where no effect on the physical health could be established, it could not be said that a group had been physically destroyed and this would therefore fall outside of the envisaged 67

UN Doc. A/C.6/SR.82, 189 (Mr. de Beus, Netherlands). UN Doc. A/C.6/SR.81, 177 (Mr. Dignam, Australia); ibid., (Mr. Manini y Rı´os, Uruguay). 69 UN Doc. A/C.6/SR.81, 177 (Mr. Spanien, France). 70 UN Doc. A/C.6/SR.81, 177 (Mr. Maktos, United States of America). 71 Ad Hoc Committee Draft Commentary (UN Doc. E/794), fn. 15. 72 UN Doc. A/C.6/232/Rev.1; UN Doc. A/C.6/SR.81, 175, 177 (Mr. Ti-tsun Li, China). 73 UN Doc. A/C.6/SR.81, 178 (Mr. Fitzmaurice, United Kingdom); similarly 178 (Mr. Raafat, Egypt). 68

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Article II 15, 16 scope of genocide.74 Mr. Fitzmaurice further noted that it would seem inappropriate to extend the notion of genocide to acts which were of little importance in themselves and not likely to lead to the physical destruction of a group. He argued that the rather vague wording of sub-paragraph 2 should therefore be replaced by ‘causing grievous bodily harm to members of the group.’75 This proposal was then questioned by the Egyptian delegate (Mr. Raafat), who feared that the term ‘grievous’ might give rise to many difficulties of interpretation in the courts.76 A compromise was reached when India proposed the substitution of the word ‘serious’ for ‘grievous’ and the addition of the words ‘or mental’ after the word ‘physical’.77 The United Kingdom delegation’s amendment as amended by the Indian proposal was then put to vote and adopted by 24 votes to 10, with 7 abstentions.78 16 The mode of carrying out genocide by ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part’ originates from two distinct provisions in the Secretariat draft, Article I (II) para. 1 lit. (b) and (d), which were merged during the Ad Hoc Committee. At that stage, China produced a draft provision whereby genocide could be committed, inter alia, by ‘[s]ubjecting such group to such conditions or measures as will cause the destruction, in whole or in part, of the physical existence of such group ...’.79 The Soviet delegate agreed to the concept in principle, but held that the following formulation would be clearer and correspond more closely to the underlying principles of the draft: ‘The premeditated infliction on these groups of such conditions of life which will be aimed at destroying totally or partially their physical existence.’80 The US representative (Mr. Maktos) felt that the term ‘destroying ... their physical existence’ lacked the required directness and suggested a third version, reading: ‘Subjecting members of a group to such physical conditions or measures as will cause their death or prevent the procreation of the group.’81 France drew attention to a fundamental difference between the Soviet text, which covered the destruction of a group, and the US text, which covered the destruction of the individuals constituting a group.82 Venezuela expressed sympathy for the US proposition, as the alternative versions in effect protected only the group as such and not its individual members.83 However, Poland noted that it was possible to destroy a group without destroying its members, for instance, by enforcing measures such as prolonged segregation of sexes.84 The version finally adopted was an amalgamation of the three propositions. It read: ‘Inflicting on the members of the group such measures or conditions of life which would be aimed to cause their deaths.’85 In the Sixth Committee, the Soviet Union proposed a slightly revised 74

UN UN 76 UN 77 UN 78 UN 79 UN 80 UN 81 UN 82 UN 83 UN 84 UN 85 UN 75

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Doc. A/C.6/SR.81, 178 (Mr. Fitzmaurice, United Kingdom), emphasis added. Doc. A/C.6/SR.81, 175 (Mr. Fitzmaurice, United Kingdom), emphasis added. Doc. A/C.6/SR.81, 178 (Mr. Raafat, Egypt). Doc. A/C.6/SR.81, 179 (Mr. Sundaram, India). Doc. A/C.6/SR.81, 179. Doc. E/AC.25/9, Article I para. 2. Doc. E/AC.25/SR.13, 12 (Mr. Morozov, Soviet Union). Doc. E/AC.25/SR.13, 12 (Mr. Maktos, United States of America). Doc. E/AC.25/SR.13, 13 (Mr. Ordonneau, France). Doc. E/AC.25/SR.13, 13 (Mr. Pe´rez Perozo, Venezuela). Doc. E/AC.25/SR.13, 13 (Mr. Rudzinski, Poland). Doc. E/AC.25/SR.13, 13–4.

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version of its earlier amendment: ‘The deliberate creation of conditions of life for such groups as is aimed at their physical destruction in whole or in part.’86 This proposal met with threefold critique. Egypt found fault with the word ‘deliberate’, as this element was already included in the first part of Article II and would therefore be redundant.87 In a brief reply, however, Belgium pointed out that in the chapeau of Article II ‘deliberate’ referred to ‘definite intent to destroy a group or groups’, whereas in this context it related to the creation of conditions of life.88 The second point was raised by the United Kingdom delegation (Mr. Fitzmaurice), who felt that such acts which do not implicate a likelihood of entailing the destruction of a group should not be deemed genocidal. Accordingly, he put forward that the vague term ‘aimed at causing’ should be replaced by ‘intended and likely to cause’.89 In addition, Belgium drew attention to the fact that the wording employed in the French version of the Soviet amendment (‘de nature a` entraıˆner’) did not fully capture the ideas of its authors.90 The Belgian delegate then brokered a compromise whereby the phrase ‘as are calculated to bring about’ was substituted for ‘as aimed at’, and the aforementioned French wording was replaced by the word ‘devant’.91 The final version was then adopted by 23 votes to 7, with 7 abstentions.92 The desire to include acts of biological genocide in the ambit of the convention 17 was largely uncontested during the drafting process. The Secretariat draft specified three different modes (sterilization and/or compulsory abortion, segregation of the sexes, obstacles to marriage) under the generic term of ‘restricting births’.93 With respect to ‘segregation of sexes’ the draft commentary remarked that ‘this may be induced by various causes such as compulsory residence in remote places, or the systematic allocation of work to men and women in different localities.’94 Without thorough discussion on the matter,95 the Ad Hoc Committee adopted the simplified wording ‘[i]mposing measures intended to prevent births within the group’.96 In the Sixth Committee, the Soviet Union expressed its dissatisfaction with the present text and proposed an amendment97 which would have shifted the completion of the crime to a later stage.98 Eventually, however, the provision was adopted by 30 votes to none, with 3 abstentions. The act of ‘[f]orcibly transferring children of the group to another group’ was 18 envisaged in the Secretariat draft under the rubric of cultural genocide, with the slightly different wording of ‘forced transfer of children to another human group.’99 As to its underlying rationale, the given commentary notes that ‘[t]he separation of 86

UN Doc. A/C.6/223, Article II (ii). UN Doc. A/C.6/SR.82, 182 (Mr. Raafat, Egypt). 88 UN Doc. A/C.6/SR.82, 182 (Mr. Kaeckenbeeck, Belgium). 89 UN Doc. A/C.6/SR.81, 175 (Mr. Fitzmaurice, United Kingdom). 90 UN Doc. A/C.6/SR.81, 180 (Mr. Kaeckenbeeck, Belgium). 91 UN Doc. A/C.6/SR.82, 182. 92 UN Doc. A/C.6/SR.82, 183. 93 Secretary Draft Commentary (UN Doc. E/447), 6. 94 Secretariat Draft Commentary (UN Doc. E/447), 26. 95 See UN Doc. E/AC.25/SR.13. 96 Ac Hoc Committee Draft Commentary (UN Doc. E/794), 13. 97 UN Doc. A/C.6/223, Article II (i): ‘The physical destruction in whole or in part of such groups; for example ... the prevention of births by means of sterilization and enforced abortion.’ 98 UN Doc. A/C.6/SR.82, 183 (Mr. Morozov, Soviet Union). 99 Secretariat Draft Commentary (UN Doc. E/447), 6. 87

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Article II 18 children from their parents results in forcing upon the former at an impressionable and receptive age a culture and mentality different from their parents’. This process tends to bring about the disappearance of the group as a cultural unit in a relatively short time.’100 Of the seven governments who chose to comment on the draft, only the United States expressly welcomed the criminalization of this act.101 According to the travaux pre´paratoires, the Ad Hoc Committee did not consider the matter. In the Sixth Committee it was brought up again by the Greek delegation102 and discussed intensely during the 82nd meeting. Those who advocated the Greek amendment held that the forced transfer of children could be as effective a means of destroying a human group as that of imposing measures of biological or physical genocide.103 Uruguay qualified its approval of the Greek amendment and held that ‘there was reason to condemn measures intended to destroy a new generation through abducting infants, forcing them to change their religion and educating them to become enemies of their own people.’104 The Syrian delegate endorsed the amendment, as it supported the Syrian position that genocide should not only be confined to the destruction of a human being, but also extend to the threat of destruction. In the case at hand, Syria found that the element of threat constituted a decisive factor.105 The opponents of the Greek move especially admonished the vagueness of the proposed wording.106 More specifically, they pointed to the uncertainty as to whether the term ‘forced transfer’ required cross-border conveyance,107 permanence108 or mass-transfer.109 The Polish delegate added that ‘transfer’ was broad enough to apply to the evacuation of children from a theatre of war,110 which should certainly not be encompassed. From a historical point of view, the Soviet delegate (Mr. Morozov) pointed out that the mere transfer of children had never been employed as a means of destroying a protected group.111 Siam was further dissatisfied that the text did not state that the transfer of children must involve their complete absorption by a new group with the resultant loss of their former identity.112 The latter uncertainty is clearly reflected in the indecisiveness amongst the Committee members as to whether the transfer of children should be conceived of as a species of cultural, biological or 100

Secretariat Draft Commentary (UN Doc. E/447), 27. UN Doc. E/623, Annex Section I, 2., Article I (I) para. 3; UN Doc. A/401 sub. 5; UN Doc. E/ 621 Annex, Part I, (3) (c). Similarly, the World Jewish Congress (UN Doc. E/C.2/52) proposed that ‘[t]he Convention should specifically outlaw the systematic practice of forcibly separating children from their parents and bringing them up in a culture different from that of their parents.’ 102 UN Doc. A/C.6/SR.81, 176, fn. 1, (Mr. Spiropoulos, Greece). 103 UN Doc. A/C.6/SR.82, 186, 188 (Mr. Vallindas, Greece); ibid., 187 (Mr. Manini y Rı´os, Uruguay); in the same vein, the US delegate (Mr. Maktos, ibid., 187, 189) adduced the dubious argument that ‘in the eyes of a mother [sic], there was little difference between the prevention of a birth by abortion and the forcible abduction of a child shortly after its birth’. 104 UN Doc. A/C.6/SR.82, 187 (Mr. Nanini y Rı´os, Uruguay). 105 UN Doc. A/C.6/SR.82, 187 (Mr. Tarazi, Syria). 106 UN Doc. A/C.6/SR.82, 188 (Mr. Raafat, Egypt); ibid., 188 (Mr. Lachs, Poland); ibid., 188–9, 191 (Mr. Kaeckenbeeck, Belgium); ibid., 189 (Mr. Lachs, Poland); ibid., 189 (Mr. de Beus, Netherlands); ibid., 189 (Mr. Zoubrek, Czechoslovakia); ibid., 190–1 (Mr. Stephen, Haiti). 107 UN Doc. A/C.6/SR.82, 188 (Mr. Raafat, Egypt). 108 UN Doc. A/C.6/SR.82, 191 (Mr. Kaeckenbeeck, Belgium). 109 UN Doc. A/C.6/SR.82, 189 (Mr. de Beus, Netherlands). 110 UN Doc. A/C.6/SR.82, 188 (Mr. Lachs, Poland). 111 UN Doc. A/C.6/SR.82, 187, 190 (Mr. Morozov, Soviet Union). 112 UN Doc. A/C.6/SR.82, 190 (Prince Wan Waithayakon, Siam); similarly ibid., 189 (Mr. de Beus, Netherlands). 101

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physical genocide: Whilst some considered such acts as a form of cultural genocide,113 others deemed them to be a kind of physical genocide,114 yet others regarded them to be a hybrid of both,115 and a proportion even fluctuated between different positions.116 At the close of the debate, the Greek amendment was adopted by 20 votes to 13, with 13 abstentions.117 Another noteworthy discussion in the Sixth Committee turned on the phenom- 19 enon later to be known as ‘ethnic cleansing’. During the 81st meeting, Syria proposed the amendment of Article II by the following: ‘5. Imposing measures intended to oblige members of a group to abandon their homes in order to escape the threat of subsequent ill-treatment.’ The Yugoslavian representative (Mr. Bartos) supported the proposal and cited an instance in which the Nazis had dispersed a Slav majority from a certain part of Yugoslavia in order to establish a German majority there. In his view, such action was tantamount to the deliberate destruction of a group.118 Other delegates voiced noncommittal sympathies for the concept, but held that the present wording treaded well below the required threshold of genocide, which would require at least a serious threat of ill-treatment,119 or a threat of genocide,120 respectively. On the other hand, the United States, United Kingdom and Cuba felt that the Syrian amendment did not fall within the proper limits of genocide, which was, in essence, the destruction of a human group.121 The Soviet delegate (Mr. Morozov) agreed and further added that measures compelling group-members to abandon their homes constituted rather a consequence of genocide than genocide itself.122 Ultimately the Syrian proposal was rejected by 29 votes to 5, with 8 abstentions.123

III. Intent to destroy The preparatory work clearly reveals that early on the drafters envisaged 20 genocide as a goal-oriented crime, requiring the individual perpetrator to act with the purpose or aim of destroying a protected group, in whole or in part.124 In the Secretariat Draft this ‘transcending internal tendency’,125 or specific intent element, required the perpetrator to have acted ‘with the purpose of destroying [one of the aforesaid groups] in whole or in part,’ which in the attached commentary was clarified to mean that ‘the object [of the individual act] must be the destruction of a group of human beings.’126 113

Supra, fn. 66. UN Doc. A/C.6/SR.82, 189 (Mr. Manini y Rı´os, Uruguay). 115 UN Doc. A/C.6/SR.82, 189 (Mr. Abdoh, Iran). 116 UN Doc. A/C.6/SR.82, Mr. Vallindas (Greece): ‘not primarily an act of cultural genocide. Although it could in certain cases be considered as such ...’ (188, emphasis added); ‘not connected with cultural genocde, but with the destruction of a group – with physical genocide’ (189). 117 UN Doc. A/C.6/SR.82, 190. 118 UN Doc. A/C.6/SR.82, 184 (Mr. Bartos, Yugoslavia). 119 UN Doc. A/C.6/SR.82, 184 (Mr. Kaeckenbeeck, Belgium). 120 UN Doc. A/C.6/SR.82, 184 (Mr. Sundaram, India). 121 UN Doc. A/C.6/SR.82, 185 (Mr. Maktos, United States of America; Mr. Fitzmaurice, United Kingdom; Mr. Dihigo, Cuba). 122 UN Doc. A/C.6/SR.82, 185 (Mr. Morozov, Soviet Union). 123 UN Doc. A/C.6/SR.82, 186. 124 See: ICTY Krstic ´, TC, 2 August 2001, para. 571; Werle, Int’l Criminal Law (2nd ed.), mn. 755. 125 Ambos, IRRC 91 (2009), 835, translating the German term ‘u ¨ berschießende Innentendenz’. 126 Secretariat Draft Commentary (UN Doc. E/447), 23 (emphasis added). 114

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During the meetings of the Ad Hoc Committee, four of the seven state-representatives explicitly confirmed this understanding.127 A fifth committee member, the Soviet delegate Mr. Morozov, seemingly shared this view128 but may have been misunderstood, as is indicated by later discussions during the 73rd meeting of the Sixth Committee considered below. The remaining two delegates (Mr. Maktos of the USA and Mr. Pe´rez Perozo of Venezuela) did not express a clear stance on the matter. From its 10th meeting onwards, the Ad Hoc Committee repeatedly altered the wording of the specific intent element, substituting the terms ‘with the purpose of destroying’ of the Secretariat Draft for ‘acts aimed at the physical destruction’,129 then ‘deliberate acts directed against’,130 followed by ‘deliberate acts committed with the intention of destroying’131 and ultimately ‘deliberate acts committed with the intent to destroy’.132 Unlike such fervourous amendments may suggest, the records clearly indicate that these restatements were not intended to entail significant alterations in the meaning or scope of this element. The formulation ‘acts aimed at’ was forged at the end of the 10th meeting to capture the gist of the statements of Committee members, namely the substantiation of the goal-oriented nature of the 127 The protocol remarks with respect to (a) Mr. Rudzinzki, Poland: ‘He considered that acts constituting genocide were acts aimed at the physical extermatination of human groups ... whatever the motives ....’ (UN Doc. E/AC.25/SR.3); Critically addressing the US remarks on the partial destruction of groups, he said that ‘perpetrators of the act in question were guilty of genocide even when the act was aimed only at the partial destruction of a group.’ (UN Doc. E/AC.25/SR.10). (b) Mr. Lin Mousheng, China: ‘Mr. LIN MOUSHENG (China) expressed the view that genocide consisted in acts aimed against a national, racial, religious (or political) group for the purpose of destroying that group and hindering its development.’ (UN Doc. E/AC.25/SR.5); See also the Draft Convention proposed by China on 16 April 1948, Article I: ‘In this Convention genocide means any of the following acts directed against a ... group, for the purpose of destroying its physical existence ....’ (UN Doc. E/AC.25/SR.10). (c) Mr. Azkoul, Lebanon: ‘The fundamental point was to decide what elements should be included in the definition of genocide. He perceived three essential ideas: the aim of the act, namely, destruction; the character of that destruction, its motives ....’ (UN Doc. E/AC.25/SR.10). ‘Mr. Azkoul ... pointed out that appropriate measures should be taken for the punishment of individual crimes aimed at the destruction of a group of human beings ....’ (UN Doc. E/AC.25/SR.10). (d) Mr. Ordonneau, France: ‘He also considered that a distinction must be made between the aim – the physical destruction of a group – an the material means ... to achieve that aim.’ (UN Doc. E/AC.25/SR.10) ‘He would therefore support the proposed definition [requiring a criminal act directed at the physical destruction of a group]’ (UN Doc. E/AC.25/SR.10). 128 ‘The Soviet delegation’s memorandum considered as factors constituting genocide various acts and measures aimed at the physical extermination of populations ....’ (UN Doc. E/AC.25/SR.3). ‘Naturally, the murder of an individual could not be considered genocide unless it could be proved that it was the first of a series of acts aimed at the destruction of an entire group.’ (UN Doc. E/ AC.25/SR.10). ‘He [Mr. Morozov] pointed out that his proposal defining the crime of genocide ... agreed to a great extent with the draft submitted by the Chinese representative ... [requiring acts ‘for the purpose of destroying’]’ (UN Doc. E/AC.25/SR.10). ‘[P]hysical genocide ... should be defined ... as follows: Paragraph 1 – In this convention, the word ‘genocide’ means a criminal act directed at the physical destruction of a group on national, racial or religious grounds.’ (UN Doc. E/AC.25/ SR.10). ‘Mr. Morozov ... asked whether the following definition would be satisfactory ...: ‘In this Convention, the word ‘genocide’ means a criminal act aimed at the physical destruction of a group ....’ (UN Doc. E/AC.25/SR.10). 129 At the end of the 10th meeting, the Committee settled on a preliminary definition, according to which ‘the word ‘genocide’ means a criminal act aimed at the physical destruction, in whole or in part, of a group of human beings, for racial, national or religious reasons.’ (UN Doc. E/AC.25/ SR.10). 130 UN Doc. E/AC.25/SR.12. 131 UN Doc. E/AC.25/SR.11. 132 UN Doc. E/AC.25/SR.24.

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individual genocidal act. The term ‘deliberate acts directed against’ was introduced at the close of the 12th meeting by the Chinese representative (Mr. Lin Mousheng) in order to satisfy the wish of the Soviet delegate to retain and emphasize the factor of intention. It was adopted without any dissent.133 As ‘deliberate’ was not more specifically defined, it is fair to assume that it was meant to refer to the definition provided by the Secretariat Draft Commentary, which treated ‘deliberate’ as synonymous to ‘purposeful’.134 Feeling that the element of intention should be clearly stated in the first paragraph, at the 13th meeting the French delegate (Mr. Ordonneau) proposed that the wording be altered to ‘deliberate acts committed with the intention of destroying’, which again was readily adopted without significant discussion. Unfortunately, the Committee did not address the obvious implied duplication of the subjective element. In any event, the term ‘intention of destroying’ was intended to signify purpose-orientation, as is illustrated by the draft commentary wherein the Ad Hoc Committee equated the term with ‘seeking to’, holding that ‘[g]enocide is involved even if the authors of the act intended to destroy only part of the group, as for example if they sought to reduce it by a third or a quarter of the numbers of its members.’135 The eventual wording ‘intent to destroy’ was included in the text during the 24th meeting without apparent discussion.136 However, the fact that in the following draft the Committee chose to retain the wording ‘intention of destroying’ within the parallel provision on cultural genocide (then Article 2 of the Draft) suggests that the Committee deemed the terms to be interchangeable. In the same vein, the protocols of the Sixth Committee reveal that ‘intent to 22 destroy’ was largely conceived of as requiring destruction to be the perpetrators goal. This is not only suggested by a number of statements to this effect,137 but also finds indirect support in the fact that some of delegates endorsed the deletion of a separate element of premeditation, feeling that its underlying idea was already sufficiently covered by ‘intent to destroy’.138 Since premeditation requires conspiracy, planning or plotting in pursuit of a criminal goal,139 this push for deletion 133

UN Doc. E/AC.25/SR.12. Secretariat Draft Commentary (UN Doc. E/447), 23: ‘The act must be deliberate. This means that its object must be the destruction of a group of human beings.’ 135 UN Doc. E/AC.25/W.1, emphasis added. 136 UN Doc. E/AC.25/SR.24. 137 UN Doc. A/C.6/SR.73, 94 (Mr. Kaeckenbeeck, Belgium): ‘The main problem, in the view of the Belgian delegation, was to decide against whom the intention of genocide was directed; it was clear that it was aimed at the destruction of a whole group, even if that result was achieved only in part, by stages.’ Ibid., 92 (Mr. Raafat, Egypt): ‘Mr. Raafat (Egypt) did not see any real difference between the text proposed by the Ad Hoc Committee and the amendment submitted by the USSR delegation [UN Doc. A/C.6/223], which proposed replacing the words ‘committed with intent to destroy’ by the words ‘aimed at the ... destruction’. Both in fact retained the idea of criminal intent.’ Implicitly also: Mr. Reid, New Zealand, ibid., 94. Mr. Chaumont, France, ibid., 95: ‘Mr. Chaumont thought the expression ‘aimed at the...destruction’ was preferable to ‘with the intent to destroy’, used by the Ad Hoc Committee.’ Likewise, yet with respect to cultural genocide: Mr. Khomussko, Byelorussian Soviet Socialist Republic, UN Doc. A/C.6/SR.83, 202: ‘... actions aiming at the destruction of ...’. 138 UN Doc. A/C.6/SR.71, 79 (Mr. Paredes, Philippines); ibid., 81 (Mr. Morozov, Soviet Union); UN Doc. A/C.6/SR.72, 83 (Mr. Lachs, Poland); ibid., 84 (Mr. Raafat, Egypt); ibid., 86 (Mr. Kaeckenbeeck, Belgium); ibid., 87 (Mr. Amado, Brazil); ibid., 87 (Mr. Setalvad, India). 139 For the understanding of ‘premeditation’ amongst the members of the 6th Committee, see: UN Doc. A/C.6/SR.72, 87 (Mr. Noriega, Mexico); UN Doc. A/C.6/SR.73, 90 (Mr. Paredes, Philippines). 134

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Article II 22–24 does not make sense unless ‘intent’ had been deemed to involve an element of goal-orientation. 23 Finally, it is important to note that during its 73rd meeting, the Sixth Committee voted on a Soviet amendment140 which would have allowed for a less restrictive conception of the specific intent requirement, but this amendment failed to win the Committee’s approval. The issue revolved around a Soviet proposal to define genocide as acts ‘aimed at’ the destruction of groups, which the rest of the Committee considered a special subjective element141 until the Soviet delegate elucidated that it should be understood as acts ‘resulting in’ destruction.142 This met with the immediate objection of the US and Belgian representatives, who pointed out that the amendment would amount to replacing the intent to destroy with an objective element.143 Striking a conciliatory tone, the French delegate, put forward that, given that genocide is criminal in nature, a (general) intent requirement would still be required.144 However, when put to the vote, the Soviet amendment was rejected by 36 votes to 11, with 4 abstentions.145 24 Some discord arose over the question as to whether the intent to destroy needed to be directed against a group as a whole. According to the Secretariat draft, a purpose or intent which aimed at the destruction of a group ‘in whole or in part’ would suffice. The Ad Hoc Committee initially adopted this view,146 but forwent any reference to the ‘in whole or in part’-element in its final draft.147 During the General Assembly’s 3rd session the issue was reintroduced by a Soviet amendment proposing the substitution of the enumeration of incriminated acts as provided in sub-paragraphs 1 to 4 of Article II with two sets of conduct, each of which required the destruction of the group ‘in whole or in part.’148 The Norwegian delegate supported this move, though was of the view that the words ‘in whole or in part’ would be better placed in the first sentence of the article.149 Although little discussion was given to this amendment, the record reveals quite clearly that those who addressed it welcomed it as a compromise between the French position which sought to extend genocide to cases where a single individual was attacked as a member of a group, and the position which sought to reduce genocide to the intended destruction of whole groups.150 The Norwegian proposal was then adopted by 42 votes to 8, with 2 abstentions.151 Despite the clear result, the Belgian delegate (Mr. Kaeckenbeeck) raised two points of criticism against this proposal: First, it would weaken criminal intent as the main feature of genocide 140

UN Doc. A/C.6/223. See, for instance: UN Doc. A/C.6/SR.73, 92 (Mr. Raafat, Egypt), who could not see any real difference between ‘intent to destroy’ and ‘aimed at the ... destruction’. 142 UN Doc. A/C.6/SR.73, 96 (Mr. Morozov, Soviet Union). 143 UN Doc. A/C.6/SR.73, 96 (Mr. Gross, United States of America; Mr. Kaeckenbeeck, Belgium). 144 UN Doc. A/C.6/SR.73, 96–7 (Mr. Chaumont, France). 145 UN Doc. A/C.6/SR.73, 97. 146 UN Doc. E/AC.25/SR.4, 3–4. 147 UN Doc. E/AC.25/SR.24, 4. 148 UN Doc. A/C.6/215/Rev.1: ‘... 1. The physical destruction in whole or in part of such groups, 2. The deliberate creation of conditions of life aimed at the physical destruction in whole or in part of such groups.’ 149 UN Doc. A/C.6/228; UN Doc. A/C.6/SR.73, 92 (Mr. Wikborg, Norway). 150 UN Doc. A/C.6/SR.73, 92–3 (Mr. Raafat, Egypt; Mr. Fitzmaurice, United Kingdom; Mr. Wikborg, Norway). 151 UN Doc. A/C.6/SR.73, 97. 141

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and hence hamper distinctions between genocide and other forms of criminal phenomena. Second, the ‘part’ element had not been defined and would thus bring about a lack of legal clarity.152 Further dispute surrounded the question as to whether the subjective elements 25 of genocide required premeditation, i. e. a degree of planning and preparation in the commission of the crime.153 Not having been envisaged in the Secretariat Draft,154 the concept of premeditation first surfaced in the Ad Hoc Committee Draft Commentary, according to which the notion of premeditation constitutes one of four general elements of genocide.155 This is surprising in so far as the commentary refers to the word ‘deliberate’, which was included during the 13th meeting for the sole purpose of stressing the ‘intention’ (or ‘intent’) requirement and was not viewed as having introduced an additional element of premeditation.156 Within the Sixth Committee, opinions vis-a`-vis the concept of premeditation were divided: Some delegates held that an element of premeditation was already implied by the ‘intent to destroy’157 or in the execution of the crime158 and could therefore be dispensed with in the definition. The Cuban delegate (Mr. Dihigo) partly disagreed and stated that while genocide committed by governments would always imply premeditation, this could be different when genocide was committed by private individuals. Consequently, Cuba announced its intention to vote against the deletion of the word ‘deliberate’.159 The opposite point of view was taken by the Yugoslavian delegate (Mr. Bartos), who energetically spoke against the inclusion of premeditation, presenting three arguments: He called attention to the practical difficulties of dealing with a genocidal scenario where premeditation could only be established with regard to the instigators, but not the principal agents whose intent might have been purely momentary. Further, Mr. Bartos held that inclusion of the concept of premeditation would allow many cases to go unpunished and referred to certain lynching charges in the United States which had been dismissed on the grounds that premeditation could not be established. Finally, he concluded that this concept would amount to making suppression dependent upon a subjective, psychological condition and not upon

152

UN Doc. A/C.6/SR.76, 122 (Mr. Kaeckenbeeck, Belgium). Schabas, Genocide in Int’l Law (2nd ed.), 267; Pradel, Droit pe´nal compare´, 473. See also Mr. Noriega (Mexico) (UN Doc. A/C.6/SR.72, 87), according to whom the word ‘deliberate’ covered the ideas of plotting and conspiracy. 154 Although the Secretariat Draft Commentary expressed that the incriminated act needs to be ‘deliberate’ (UN Doc. E/447, 22–3), the term was merely employed as to indicate that the respective acts need to be aimed at the destruction of a group (ibid.). 155 Ad Hoc Committee Draft Commentary (UN Doc. E/794), 13. 156 See supra, mn. 21. 157 See UN Doc. A/C.6/SR.72, 86 (Mr. Kaeckenbeeck, Belgium): ‘[T]he Belgian amendment ... deleted the word ‘deliberate’, since it was rendered unnecessarx if particular intent were included in the definition of genocide.’ See also ibid., 87 (Mr. Fawcett, United Kingdom); UN Doc. A/C.6/ SR.71, 79 (Mr. Paredes, Philippines). 158 UN Doc. A/C.6/SR.72, 87 (Mr. Demesmin, Haiti): ‘As for premeditation, which was merely an aggravating circumstance, it was always implicit in genocide, since preparatory acts were necessary for the extermination of a group.’ Likewise, the Egyptian delegate Mr. Raafat (ibid, 84) referred to premeditation as an ‘aggravating circumstance’. The record leaves it unclear, however, if Mr. Raafat nevertheless considered it a constitutive element of genocide. 159 UN Doc. A/C.6/SR.73, 89 (Mr. Dihigo, Cuba). 153

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Article II 25–27 the objective character of the criminal act alone.160 In the end, the Committee eliminated the word ‘deliberate’ from the draft, voting 27 to 10, with 6 abstentions.161 26 The motive behind the intent to destroy was a subject of lengthy consideration during the drafting process. Delimiting genocide through inclusion of a special motive requirement was purposely omitted at the Secretariat’s level,162 but increasingly advocated during the deliberations of the Ad Hoc Committee. The discussion was triggered by Lebanon, whose delegate (Mr. Azkoul) remarked that the present draft definition embraced certain scenarios in which the intentional destruction of a group appeared less reprehensible and inapt to shake the conscience of mankind, such as the destruction of a group which itself habitually committed the crime of genocide. Therefore, an additional criterion would be required to redefine genocide as the reprehensible destruction of human groups. According to Mr. Azkoul, this criterion was to be found in the underlying motive: ‘Included in the crime of genocide, therefore, would be all acts tending towards the destruction of a group on the grounds of hatred of something different or alien, be it race, religion, language, or political conception, and acts inspired by fanatism in whatever form.’163 Accordingly, in a subsequent contribution, Lebanon proposed that the definition be amended by notion of ‘the destruction of a group, as such.’164 After further discussions,165 the Ad Hoc Committee agreed to the consideration of motives and adopted the draft wording ‘on grounds of the national or racial origin, religious belief, or political opinion of its members.’166 27 In the Sixth Committee, a group of states opposed the inclusion of any reference to motive in the definition of the crime167 and recommended that matters of motive should solely be considered at the sentencing stage.168 The United Kingdom, which led the group, argued that the limitative nature of motives was dangerous as it ‘allowed the guilty to exonerate themselves from the charge of genocide on the pretext that they had not been impelled by motives contained in the proposed list ....’169 Much in the same vein, the Norwegian delegate (Mr. Wikborg) expressed concern that motives were ‘difficult to determine’.170 States on the counter-side opined that the retention of motives was essential to capture the intrinsic characteristics of genocide as an international crime.171 Deleting this element would allow cases which should not constitute 160

UN Doc. A/C.6/SR.72, 82, 87. (Mr. Bartos, Yugoslavia). UN Doc. A/C.6/SR.73, 90. 162 UN Doc. E/AC.25/SR.11, 3 (Mr. Giraud, Secretary of the Committee). 163 UN Doc. E/AC.25/SR.2, 3–4 (Mr. Azkoul, Lebanon). 164 UN Doc. E/AC.25/SR.10, 13 (Mr. Azkoul, Lebanon). 165 For a concise overview, see: Schabas, Genocide in Int’l Law (2nd ed.), 296–7; Ad Hoc Committee Draft Commentary (UN Doc. E/794), 14. 166 UN Doc. E/AC.25/SR.12, 9; UN Doc. E/AC.25/SR 24, 4 (political opinion of its members). 167 UN Doc. A/C.6/SR.69, 58 (Mr. Pe ´rez Perozo, Venezuela); ibid., 61 (Mr. Wikborg, Norway); UN Doc. A/C.6/SR.75, 118 (Mr. Alema´n, Panama); ibid., 120 (Mr. Fitzmaurice, United Kingdom; UN Doc. A/C.6/SR.76, 127 (Mr. Amado, Brazil). 168 UN Doc. A/C.6/SR.75, 120 (Mr. Fitzmaurice, United Kingdom); UN Doc. A/C.6/SR.76, 127 (Mr. Amado, Brazil). 169 UN Doc. A/C.6/SR.75, 120 (Mr. Fitzmaurice, United Kingdom). 170 UN Doc. A/C.6/SR.69, 61 (Mr. Wikborg, Norway). 171 UN Doc. A/C.6/SR.66, 32 (Mr. Azkoul, Lebanon); UN Doc. A/C.6/SR.72, 84 (Mr. Raafat, Egypt); UN Doc. A/C.6/SR.75, 119 (Morozov, Soviet Union). 161

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genocide to fall under Article II, such as the destruction of a group for motives of profit172 or bombing raids against whole groups as a mean of defensive warfare.173 The issue was settled through the adoption of an amendment proposed by Venezuela,174 whereby the phrase relating to motive was substituted by the addendum ‘as such’ after the word ‘group’.175 However, this wording had already proved to be prone to a wide range of interpretations. The Venezuelan representative (Mr. Pe´rez Perozo) explained that the purpose of the term was to specify that genocide premised the intended destruction of a group qua group, while leaving enough room for judges to take into consideration motives other than those enumerated in the Ad Hoc Committee’s draft.176 Egypt remarked that ‘as such’ only paraphrased the group-element of genocide without defining the motives for the crime.177 Similarly, Belgium stated that the objections raised against the motive requirement were chiefly rooted in its subjective nature, and could only be allayed by specifying therein the object of the intent. The words ‘as such’ would achieve this, as they described the intention and brought the emphasis back to the concept of groups.178 Though acknowledging the ambiguity of ‘as such’, the Soviet delegate (Mr. Morozov) took a more restrictive view and opined that the term reduced the ambit of genocide to cases where members of a group would be victimized solely because they belonged to that group.179 Lastly, the Siamese representative (Prince Wan Waithayakon) suggested two possible interpretations of ‘as such’: it might signify either ‘in that the group is a national, racial, religious or political group’, or ‘because the group is a national, racial, religious or political group.’180 As well as for its ambiguity, the Venezuelan amendment was also criticized for 28 extending the potential ambit of genocide to justifiable governmental actions against rebel groups. To this effect, El Salvador (Mr. Guillen) elucidated that if a political group were destroyed in an act of self-defence by a state government, it would be destroyed because of its subversive activities and not for its political views. Pursuant to the Venezuelan amendment, such governments would run the risk of being held responsible for genocide.181

C. Interpretation I. Material elements 1. Group a. Common requirements For a general definition of ‘group’, recourse may be taken to the Secretariat Draft 29 Commentary, according to which ‘[a] human group is made up of a certain part of 172

UN UN 174 UN 175 UN 176 UN 177 UN 178 UN 179 UN 180 UN 181 UN 173

Doc. A/C.6/SR.75, Doc. A/C.6/SR.75, Doc. A/C.6/231. Doc. A/C.6/SR.77, Doc. A/C.6/SR.77, Doc. A/C.6/SR.76, Doc. A/C.6/SR.76, Doc. A/C.6/SR.76, Doc. A/C.6/SR.77, Doc. A/C.6/SR.77,

118 (Mr. Abdoh, Iran). 119 (Mr. Reid, New Zealand). 133 (27 votes to 22, with 2 abstentions). 131 (Mr. Pe´rez Perozo, Venezuela). 126 (Mr. Raafat, Egypt). 123 (Mr. Kaeckenbeeck, Belgium). 127 (Mr. Morozov, Soviet Union), emphasis added. 133 (Prince Wan Waithayakon, Siam). 133 (Mr. Guillen, El Salvador).

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Article II 29–32 the population whose members have common characteristics distinguishing them from other members of society.’182 30 The numeric size required to make up a group under Article II cannot be determined with precision. Nevertheless, some indications do exist. It stands to reason that attacks on very small groups – deplorable and deserving of punishment as they may be – rarely possess the potential of ‘inflicting great losses on humanity’, of constituting an ‘odious scourge for [all] mankind’ or of ‘shocking the conscience of mankind’, as laid down in the preambles of the Convention and UN GA’s Resolution 96(I) respectively. Further consideration should be paid to the fact that the Convention was essentially inspired by, and devised under, the impression left by the Nazi crimes of mass-extermination, and accordingly the scenarios under consideration during the drafting process invariably referred to mass-crimes.183 In this light, one would have to assume that human collectives consisting of little more than a handful of persons must be ruled out as eligible groups under Article II of the Convention. 31 A further general assumption regarding the scope of the group element can be deduced from the exhaustive enumeration of groups in the present article. All of these groups are substantively similar in that they feature a considerable degree of cohesion and inner stability owing to membership criteria which are broadly determined by birth and normally not changeable by the members’ free will. Although this core similarity was frequently invoked during the drafting,184 and has found some support in international jurisprudence and academic writing,185 its underlying rationale remains vague. Arguments to the effect that a group membership, irresistibly and mostly irreversibly established by birth, would render a person more vulnerable186 are weak in nature, particularly when considering that in the realm of genocide the protection of individuals flows from the protection of groups and not vice versa.187 A more sound explanation could be that groups of stronger coherence and permanence tend to be more productive in the formation of specific assets, cultural or otherwise, and hence contribute a greater share to the ‘spiritual resources’ (Lemkin)188 of mankind. Irrespective of its grounding, however, the overall element of stability and cohesion due to deeply entrenched membership criteria may be drawn upon in construing the coverage of the ‘national’, ‘ethnical’, ‘racial’ and ‘religious’ attributes. 32 Aside from these minor restrictions, the notion ‘group’ is wide in scope and applies to a number of cases which may not be readily apparent to a casual observer. 182 Secretariat Draft Commentary (UN Doc. E/447), 21. For even more concise definitions, see: Robinson, Genocide Convention, 58: ‘Groups consist of individuals ...’, and Mr. Chaumont (France) (UN Doc. A/C.6/SR.73, 90): ‘The group ... was an aggregate of individuals’. Similarly: Schabas, Genocide in Int’l Law (2nd ed.), 121–2. See also May (Genocide), who traces the issue back to the metaphysical problem of universals (23–30) and then unfolds his nominalistic approach to the understanding of groups in general (30–9) and groups under Article II in particular (40–58). 183 See, for instance: UN Doc. A/C.6/SR.63, 9 (Mr. Bartos, Yugoslovakia); UN Doc. A/C.6/SR.78, 146 (Mr. Chaumont, France); UN GAOR, 3rd session, Plenary Meeting, UN Doc. A/PV.179 (Mr. Katz-Suchy, Poland); ibid., UN Doc. A/PV.178 (Mr. Khomussko, Byelorussian Soviet Socialist Republic). 184 Especially so during the discussion regarding the inclusion of political groups, supra, mn. 9. 185 Kreß, MK, § 6 VStGB, mn. 34; Becker, Verbrechen gegen die Menschlichkeit, 182–3; Stillschweig, Die Friedens-Warte (1949), 97. 186 UN Doc. A/C.6/SR.74, 99 (Mr. Abdoh, Iran); UN Doc. A/C.6/SR.75, 111 (Mr. Lachs, Poland). 187 Supra, mn. 5. 188 Supra, mn. 8.

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In particular, ‘group’ is not congruent to the notion of national, ethnical, racial or religious minority, but also extends to majority populations within a certain territory. Alongside the particular wording, persuasive arguments of logic and context support that view. First, it would obviously run counter the Convention’s protective interests if small groups within a certain territory were protected, but large groups were not. Additionally, the transfer of children from ‘one group to another’, as contemplated by Article II lit. (e) of the Convention, indicates that the term is thought to cover both majority and minority groups.189 Moreover, the crime of genocide (with the exception of Article II lit. (e)) does not 33 necessarily require the presence of two different groups, but may also be fulfilled by acts directed against the very group of which the ge´nocidaire himself is a member – acts which may hence be labelled ‘auto-genocide’ or ‘geno-suicide’. As an instance, the infamous ‘scorched-earth-decree’ of March 19, 1945 may be adduced, by which Adolf Hitler ordered, inter alia, the destruction of all remaining industrial and communications installations under the pretext that these might be captured and used by the invading allied forces.190 In a private conversation with Albert Speer, however, Hitler betrayed his genuine motives, stating that ‘[i]t is unnecessary to have consideration for the bases, which the [German] people needs for its most primitive further existence. On the contrary, it is better to destroy these things since the people has proven to be the weaker one, and the future belongs exclusively to the stronger eastern people. Those remaining after the war would be of little value anyhow, since the good ones have been killed.’191 Finally, it should be highlighted that it would be both incorrect and perilous to 34 convert the underlying philosophy of groups as spiritual contributors to humanity into a requirement that restricts the scope of of Article II. In this vein, it could be argued that culturally less prolific groups or racial groups whose genetic features are deemed less contributive to mankind than others would be less deserving of the Convention’s protection. The same would hold for culturally productive groups who commit genocide against other groups and therefore in sum reduce the spiritual heritage of the world. The latter aspect was indeed brought forward by the Lebanese delegate (Mr. Azkoul) in the Ad Hoc Committee, who had held that ‘a group [which itself habitually committed the crime of genocide] should not be permitted to exist, whatever the cultural benefit that might be expected from it.’192 Clearly, though, any approach which would condition the Convention’s protection on a group’s concrete contribution to mankind would admit of cultural bias and racial prejudice having the possibility of defining the scope of Article II, and hence open up an avenue to arbitrariness and misfeasance in the application of the Convention. It would also ignore the fact that the drafters of the Convention chose to only make vague mention of a group’s quality as contributor to the multiplicity 189

Schabas, Genocide in Int’l Law (2nd ed.), 123. The original German wording of the decree can be found at: IMT, Der Prozess gegen die Hauptkriegsverbrecher, vol. XLI, 430–1 (Beweisstu¨ck Speer 25). 191 Speer’s Response of March 29, 1945 can be found at: IMT, Der Prozess gegen die Hauptkriegsverbrecher, vol. XLI, 425–9 (Beweisstu¨ck Speer 24). 192 UN Doc. E/AC.25/SR.2. Similarly: Vespasien Pella, in: Secretariat Draft Commentary (UN Doc. E/447), 22: ‘Of course the protection of political groups ... would not cover activities by political groups with Nazi of Fascist tendencies, for those are the very groups which in the past were guilty of committing or instigating the crime of genocide.’ 190

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Article II 34–36 of mankind in the preamble (‘great losses’), and did not include it as an additional element of Article II. The text thereby signifies that a group’s contributive quality has already found conclusive expression in its national, ethnical, racial or religious attributes. For the purposes of the Convention, therefore, all such groups are irrefutably deemed contributive to, and indispensible within, the human family. The issue raised by Mr. Azkoul would thus have to be dealt with on the level of defences. On the other hand, careful consideration of the abstract ability of groups to play any contributive role whatsoever would seem unobjectionable and can provide valuable guidance, as shall be seen in the following. b. Issues of defining groups 35

Pursuant to the chapeau of Article II, the required actus reus must be targeted at the total or partial destruction of a national, racial, ethnical or religious group. The interpretation of these types of groups, in accordance with Article 31, 32 VCLT, raises three issues of a general nature. aa. Issues of delimitation

36

Far from being clean-cut, in many cases the four categories of group overlap. The reason for this can be traced back to the drafting process, where delegates and experts afforded great effort to determine which groups to include, but largely saved themselves the trouble of discerning between them.193 The ensuing blur is taken up by Schabas, who seeks to reconceptualize the four terms as ‘four corner posts that delimit an area within which a myriad of groups covered by the Convention finds protection’.194 Consequently, according to Schabas, lengthy deliberations as to whether an attacked entity qualifies as a national, ethnical, racial or religious group are unnecessary where it can be established that a given group is embraced by the overarching purpose of the enumeration.195 Quite unsurprisingly, international jurisprudence,196 along with a growing number of scholars,197 soon warmed to this approach. However, despite the practical merit of such a holistic concept, its implications are questionable. Firstly, merging the four attributes into an ill-contoured whole amounts to little less than the deletion of these elements and their replacement by an unnamed generic category, the scope of which rests at the discretion of the respective court in a given case. Such a de facto dissolution of a key element of genocide is hardly reconcilable with the principles of nullum crimen sine lege stricta/certa as sub-species of the principle of legality, which is not only prominently enshrined in Article 22 para. 2 ICC-

193

ICTY Krstic´, TC, 2 August 2001, para. 556; Schabas, Genocide in Int’l Law (2nd ed.), 129. Schabas, Genocide in Int’l Law (2nd ed.), 129–31. 195 Schabas, Genocide in Int’l Law (2nd ed.), 130–1. 196 ICTY Krstic ´, TC, 2 August 2001, para. 556: ‘The preparatory work of the Convention shows that setting out such a list was designed more to describe a single phenomenon, roughly corresponding to what was recognized, before the second word war, as ‘national minorities’, rather than to refer to several distinct prototypes of human groups. To attempt to differentiate each of the named groups on the basis of scientifically objective criteria would thus be inconsistent with the object and purpose of the Convention.’ ICTY Brd-anin, TC, 1 September 2004, para. 682. 197 Werle, Int’l Criminal Law (2nd ed.), mn. 708; Lu ¨ ders, Die Strafbarkeit von Vo¨lkermord, 82–3; Paul, Kritische Analyse, 116; Shaw, in: Dinstein, International Law at at a Time of Perplexity, 807. 194

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Statute,198 but also acknowledged as part of customary international law,199 and/or as a general principle of international law,200 and hence governs the interpretation of the criminal law provisions in the Convention.201 Moreover, the holistic approach strays from the otherwise firmly established rule of interpretation in international law that each individual word employed in a legal document implies and contributes an autonomous meaning,202 and must hence be interpreted as a stand-alone component within the norm’s substance. On closer consideration, therefore, the holistic approach should be boiled down to the truism that when construing the different terms used to discern the particular groups protected the context needs to be taken into account, as is stipulated by Article 31 VCLT. bb. ‘Subjective-objective approach’ vs. ‘objective approach’ Another controversy revolves around the question as to whether the terms defining 37 the targeted groups are to be construed objectively or from the perspective of the persons involved. Rightly, the affiliation of a given body of persons to at least one of the protected groups under Article II of the Convention should be judged objectively, irrespective of the point of view of either the perpetrators or the victims.203 The prevailing approaches, however, make reference (more or less extensively) to 38 the perpetrators’ mindset. A purely ‘subjective approach’ of this kind was taken by the ICTY Trial Chamber in Jelisic´. The Chamber held that defining protected groups by means of objective, scientific criteria, although possible, would be ‘a perilous exercise whose result would not necessarily correspond to the perception of the persons covered by such categorisation.’204 Consequently, the Chamber advocated 198 Article 22 para. 2 ICC-Statute reads: ‘The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.’ 199 ICTY Krstic ´, TC, 2 August 2001, para. 580; Broomhall, in: Triffterer, ICC Statute (2nd ed.), Article 22 mn. 15, Jescheck, JIntCrimJust 2 (2004), 40–2; Bassiouni, Introduction to International Criminal Law (2nd ed.), 246–253; Werle, Int’l Criminal Law (2nd ed.), mns 104, 107. 200 ICTY Mucic ´ et al., TC, 16. November 1998, para. 402, Triffterer, Dogmatische Untersuchungen, 125–7. 201 See, however, Shahabuddeen (JIntCrimJust 2 (2004), 1007–17) who argues that strict application of the nullum crimen principle would unduly hinder the progressive development of international criminal law. 202 Kreß, IntCrimLRev 6 (2006), 475 (referring to the ICJ Oil Co. case, ICJ Reports 1952, 105); Kreß, MK, § 6 VStGB, mn. 36; Hannum, HRQ 11 (1989), 103–7, 104. 203 Amongst scholars, the objective aproach is especially advocated by Kreß (IntCrimLRev 6 (2006), 477–8; Kreß, MK, § 6 VStGB Rn. 33). The ICC’s first articulation on the matter also seems to reveal sympathy for the objective view (see: ICC Al Bashir, PTC I, 4 March 2009, para. 135 (‘the targeted group must have particular positive characteristics’). In its Bosnian Genocide judgment (ICJ Reports 2007, 43) the ICJ, although refusing to consider the issue in depth (ibid., para. 191), seems to have based a finding on the objective approach. In regards to the so-called practice of ‘procreative rape’ (see infra, mn. 90) it did not follow the Applicant’s argument that children born as a result of forced pregnancies would be considered to be part of the perpetrators’ group according to the prevalent societal beliefs of both perpetrators and victims (ibid., para. 362). Instead, it seemingly endorsed the Respondent’s objective view that babies born and raised by Muslims on Muslim territory belonged to the their mothers’ group (ibid., paras 366–7). In a different context, the ICJ underscored the fact that the drafters of the Convention gave close attention to the positive identification of groups ‘with specific distinguishing well-estalished, some said immutable, characteristics.’ (ibid para. 194), and hence again revealed a positive stance towards an objective approach. 204 ICTY Jelisic ´, TC, 14 December 1999, para. 70.

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Article II 38–40 evaluating the group’s status from the perspective of those who wish to single out that group from the rest of the community. According to the Chamber, it is thus the stigmatization of a group as a distinct national, ethnical, racial or religious unit in the eyes of the perpetrators205 which makes up the key criterion for determining the scope of protection. Other Chambers have picked up on the subjective aspect of stigmatization, but have also remained receptive to objective criteria. Thus, their combined solution may best be referred to as the ‘subjective-objective approach.’206 Along these lines, the trial judgment in Krstic´ held that ‘stigmatization ... by the perpetrators can be used as a criterion when defining target groups’,207 leaving room for considering objective aspects as well. The same applies to the Brd-anin trial judgment, which argued that while ‘the relevant protected group may be identified by means of the subjective criterion of the stigmatization of the group208 ... the correct determination of the relevant protected group has to be made on a case-bycase-basis, consulting both objective and subjective criteria.’209 39 Alongside the perpetrators’ perspective, some proponents of the subjective approach also factor in the self-conception of the victimized group. In Kayishema and Ruzindana the ICTR Trial Chamber proposed a tripartite definition of an ethnic group, holding that ‘[a]n ethnic group is one whose members share a common language and culture; or, a group which distinguishes itself, as such (self identification); or, a group identified as such by others, including perpetrators of the crimes (identification by others).’210 Whereas this definition treats ‘self identification’ and ‘identification of others’ as alternative requirements, the International Commission of Inquiry on Darfur took a more restrictive stance and opined that both premises must be present simultaneously for a set of persons to be considered as a protected group pursuant to the subjective approach.211 40 Incontrovertibly, drawing on subjective aspects in assessing a group’s legal status has a strong initial appeal, since it is ultimately the genocidaire’s view of a group’s features which decides on whether an individual will be victimized as a groupmember.212 This idea has found expression in Jean-Paul Sartre’s aphorism: ‘... c’est 205

ICTY Jelisic´, TC, 14 December 1999, para. 70. See Werle, Int’l Criminal Law (2nd ed.), mn. 715. 207 ICTY Krstic ´, TC, 2 August 2001, para. 557 (emphasis added). See also ICTY Stakic´, AC, 22 March 2006, para. 25. 208 ICTY Brd-anin, TC, 1 September 2004, para. 638. 209 ICTY Brd-anin, TC, 1 September 2004, para. 639; ICTR Semanza, TC, 15 May 2003, para. 317; ICTR Kajelijeli, TC, 1 December 2003, para. 811; ICTY Blagojevic´ and Jokic´, TC, 17 January 2005, para. 667; ICTY Tolimir, TC, 12 December 2012, para. 735. The open formulation that the ‘determination of the relevant protected group has to be made on a case-by-case-basis, consulting both objective and subjective criteria’ probably enjoys the greatest support at present. 210 ICTR Kayishema and Ruzindana, TC, 21 May 1999, para. 98. 211 Darfur Report (UN Doc. S/2005/60), para. 509: ‘If objectively the two sets of persons at issue do not constitute two distinct protected groups, the question arises as to whether they may nevertheless be regarded as such subjectively in that they perceive each other and [!] themselves as constituting distinct groups.’ 212 Variants of the subjective-objective approach are endorsed by Amann, AJIL 93 (1999), 198; Fronza, in: Lattanzi/Schabas, Essays on the Rome Statute (Vol. 1), 118–9; Selbmann, Der Tatbestand des Genozids, 187–9; Schabas, Genocide in Int’l Law (2nd ed.), 128; Werle, Int’l Criminal Law (2nd ed.), mn. 715; May, Genocide, 46. The International Commission of Inquiry on Darfur even opined that the subjective-objective approach has already solidified into a binding rule of customary international law (Darfur Report (UN Doc. S/2005/60) para. 501). 206

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l’antise´mite, qui fait le juif’213, or in Hermann Go¨ring’s alleged boasting remark: ‘Wer bei mir Jude ist, bestimme ich!’214 Drawing a line between victims which fall within the scope of a group according to objective, scientifically recognized criteria, and an unfortunate lot of individuals erroneously included by the perpetrator might be regarded as an unwarranted reduction of the Convention’s scope of protection.215 Much in the same vein, one might argue that the driving motives behind the perpetrator’s acts are commonly not found in the national, ethnical, racial or religious characteristics of the targeted group but in the prejudice attached to them. Prejudice is by definition, however, defiant to objective scientific qualification. Accordingly, reference to the perpetrator’s mindset might be necessary to adequately capture the social reality of genocide. Finally, the fact that in the chapeau of Article II the group-elements appear in the immediate context of the genocidaire’s special intent may also be taken as being supportive of the subjectiveobjective approach. However, the force of this latter argument should not be overstated, as the group-element is also mentioned in the sub-paragraphs (a) to (e) without any direct connection to the perpetrator’s special intent.216 On the other hand, certain aspects militate against holding the subjective 41 perspectives of the persons involved to be pertinent for the determination of groups. First and foremost, following this interpretation would ensure that the groupelement of Article II is fraught with uncertainty. In current debate and recent jurisprudence it has not yet been clearly established exactly whose mindset should be taken into account (the individual perpetrators’; the group’s of which the perpetrator is a member; the victims’?) or how the respective self-identification or identification of others should be weighed against each other and against potential objective criteria. Such far-reaching ambiguities at the very heart of the definition of genocide open up a vast latitude in applying the Convention which run counter to the effort to narrow its scope during the drafting process outlined above.217 In addition, it would be at odds with the principle of legality. Second, the common characteristics of the four groups need to be taken into 42 consideration. The travaux pre´paratoires provide evidence that only ‘stable’ groups should be eligible as targets of the crime of genocide.218 Accordingly, all four groups feature a certain degree of stability to the effect that membership is largely determined by birth and normally inalterable by the members.219 Against this 213

Sartre, Reflections sur la question juive, 81–4. A possible translation would be: ‘Within my command, who is a Jew is my business.’ Go¨ring allegedly said so in 1933 with regard to his decision to allow Martin Wronsky to remain in office at the Lufthansa despite his Jewish origin. See: Kro¨ll, in: Ueberscha¨r, Der Nationalsozialismus vor Gericht, 86. A similar remark is ascribed to the former major of Vienna (1897–1910) Karl Lueger – see: Hamann: Hitlers Wien, 417. 215 Presumably, this was the concern of the Trial Chamber in Jelisic ´, noting that defining the groups by means of objective criteria would be a ‘perilous exercise’ (ICTY Jelisic´, TC, 14 December 1999, para. 70). 216 See: ICTY Brd-anin, TC, 1 September 2004, para. 684. 217 Supra, mn. 9. 218 UN Doc. A/C.6/SR.69, 57 (Mr. Amado, Brazil); ibid., 58 (Mr. Pe ´rez Perozo, Venezuela); ibid., 59 (Mr. Raafat, Egypt); ibid., 61 (Mr. Wikborg, Norway); UN Doc. A/C.6/SR.74, 108 (Mr. Abdoh, Iran); ibid., 105 (Mr. Morozov, Soviet Union); UN Doc. A/C.6/SR.75, 111 (Mr. Lachs, Poland). The British delegate even considered ruling out religious groups, feeling that their extent of stability may not be tantamount to national, ethnical and racial groups (United Kingdom, UN Doc. A/C.6/SR.69, 60). 219 Kreß, MK, § 6 VStGB, mn. 34; ICTR Akayesu, TC, 2 September 1998, para. 511. 214

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Article II 42–45 backdrop, ephemeral and mutable factors like the individual or social perception of a group can hardly be deemed constitutive for the existence of a protected group. 43 Third, drawing upon subjective factors is at odds with one of the Convention’s main objectives. As can be gleaned from the preamble (‘great losses’) as well as from GA Resolution 96 (I) and the works of Lemkin,220 a group’s worthiness of protection hinges on its general ability to contribute – culturally or otherwise – to the human family. The way a group is perceived by others or by its members, however, does not alter a group’s actual contribution to humanity and hence cannot be determinative of the group’s status. 44 Fourth, ascribing relevance to the individual perpetrator’s perspective would (at least in some narrow cases) leave it for the perpetrator themselves to assess whether or not genocide had occurred. This would spell a tacit circumvention of the principle of international criminal law which lays out that errors of law (unlike errors of fact) do not normally affect a person’s criminal responsibility. This principle, now prominently reflected by Article 32 ICC Statute, seeks to ensure that the underlying policy to legal provisions can be achieved at all times and irrespective of the perpetrator’s personal opinions. Deviating from this rule could give rise to questionable results: For instance, on the basis of a subjective approach, it would be conceivable that a perpetrator could be exonerated from the charge of genocide in a situation where he knew the circumstances which would have classified the group he meant to destroy as an ethnical group under Article II, but due to erroneous interpretation of these facts was ignorant of the group’s legal classification. On the other hand, a perpetrator who knew the facts which objectively excluded a targeted group from Article II, but erroneously subsumed the group under the term ‘ethnical’, could be held accountable for genocide. In other words: A (partly) subjective approach focussing on the perpetrator’s perspective could potentially yield results which would run afoul of the Convention’s protective interests. 45 Finally, there is also no apparent need to draw upon the general self-perception of groups, or their general appreciation by other groups, as a determining factor. To wit, prolonged attribution of group features, within a group or from the outside, ordinarily goes alongside the development of objective traits which actually set a given group apart,221 and which can also be appropriately taken into consideration through the objective approach (e. g. a group’s histories; shared experiences of oppression and persecution; specific rites and customs; vocabulary and dialects as means of identification and segregation etc.). Notably, it may even occur that through the constant oppression of a part of the population, the oppressor himself gives birth to a protected group under Article II of the Convention which would originally not have qualified as such. In most cases, newly emerging groups of this kind would qualify as ‘ethnical groups’, as the term is sufficiently broad to embrace 220

Supra, mn. 8. See: Darfur Report (UN Doc. S/2005/60), para. 500: ‘Moreover, it would be erroneous to underestimate one crucial factor: the process of formation of a perception and self-perception of another group as distinct (on ethnic, national, religious or racial grounds). While on historical and social grounds this may begin as a subjective view, as a way of regarding the others as making up a different and opposed group, it gradually hardens and crystallizes into a real and factual opposition. It thus leads to an objective contrast. The conflict thus from subjective becomes objective. It ultimately brings about the formation of two conflicting groups, one of them intent on destroying the other.’ 221

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these aspects. But it would also not be inconceivable that persistent segregation of a group over a long period of time could also lead to distinct genetic features of that group, which would allow for its qualification as a stand-alone racial group. However, ruling out collective perception as a notional element of protected 46 groups does not signify its complete irrelevance. Rather, collective perception plays an important twofold role in this context: On the one hand, it normally constitutes a powerful catalyst in the birth process and maintenance of groups. On the other, it is a common consequence of the existence of groups and thus can be viewed as highly indicative of the existence of a group. The underlying facts, however, remain to be established by a court in a given case. Thus, it can be said that perception is the smoke, not the fire. cc. Positive vs. negative definition Finally, the group-element must be defined positively and not by the absence of 47 certain characteristics. Although challenged in the above-mentioned Jelisic´ trial judgment in 2001,222 this ‘positive approach’ has since been confirmed by all important bodies of international jurisprudence and is thus firmly settled.223 Its validity essentially flows from the shortcomings of the competing ‘negative approach’, as extending Article II to all collections of persons lacking constitutive group features would not only turn the provision’s wording on its head, but would also fail to consider, as noted by the ICJ, that the drafters of the Convention ‘were giving close attention to the positive identification of groups with specific distinguishing well-established, some said immutable, characteristics. A negatively defined group cannot be seen in that way.’224 c. National group In defining the term ‘national group’, three approaches can be considered. In a 48 rather restrictive manner, ‘national group’ could be confined to all citizens of a given State.225 Secondly, the term could be construed in accordance with existing covenants and rules on the protection of ‘national minorities’, which would include expatriate groups.226 Finally, ‘national group’ could be extended even further and also embrace any plurality of persons entitled to found a new state by virtue of the right of self-determination.227 For the sake of facilitating clear distinctions between national and ethnical groups, the first approach seems preferable. In addition, it is in line with the Swedish delegation’s push, within the Sixth Committee, for the 222 ICTY Jelisic ´, TC, 5 July 2001, para. 71. Similarly: Baltasar Garzo´n (cited at: Schabas, Genocide in Int’l Law (2nd ed.), 149) in reference to crimes committed by the Argentinian military junta: ‘It seems, in effect, that the genocidal conduct can be defined both in a positive manner, vis-a`-vis the identity of the group to be destroyed (Muslims, for example), as in a negative manner, and, indeed, of greater genocidal pretensions (all non-Christians, or all atheists, for example).’ 223 ICTY Stakic ´, AC, 2 March 2006, para. 20–4; ICTY Tolimir, TC, 12 December 2012, para. 735; ICJ, Bosnian Genocide case, ICJ Reports 2007, 125 (para. 194); ICC Al Bashir, PTC I, 4 March 2009, para. 135. In academic writing, the positive approach is, inter alia, advocated by Schabas in: Triffterer, ICC Statute (2nd ed.), Article 6 para. 12; Schabas, Genocide in Int’l Law (2nd ed.), 131; Kreß, MK, § 6 VStGB para. 33. 224 ICJ Reports 2007, 125 (para. 194). 225 RStGH v. 2. 9. 1998, ICTR Akayesu, TC, 2 September 1998, paras 512–3. 226 Kreß, MK, § 6 VStGB, mn. 40; Pritchard, Der vo ¨ lkerrechtliche Minderheitenschutz, 31. 227 This view is taken by Lisson (StanLRev 60 (2008), 1491–6) using the example of Timor Leste.

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Article II 48, 49 incorporation of ethnical groups. The Swedish delegate made the case for the inclusion of ethnical groups by stressing that if the term ‘national group’ meant a group enjoying civic rights in a given state, groups linked to a state which had ceased to exist or to one that was in the process of formation would be left unprotected.228 Nonetheless – without prejudice to the above-mentioned principle that the delimitation of genocide calls for clear distinction of the protected groups – it cannot be denied that discerning national from ethnical groups seems to be of largely academic interest, as the recognized requirements of the rights of ‘national minorities’229 and the right of self-determination230 invariably also lead to the existence of an ‘ethnical group’ under the Convention. d. Ethnical group 49

‘Ethnical’ derives from the Greek word ‘ethnikos’ (qnikRB), which already had a three-layered meaning in the classical world, having been defined as: (a) adapted to the genius or customs of a people, peculiar to a people, national; (b) suited to the manners or language of foreigners, strange, foreign; and (c) heathenish, pagan, alien to the beliefs of the beholder.231 Remarkably, the ordinary meaning of ‘ethnic’ continues to largely imply these same three elements,232 reflecting the entirety of cultural, historical, customary, lingual and religious peculiarities, and the whole way of life and mode of thought of a group which sets it apart from its neighbours and bestows a proper identity. Although the term ‘ethnical’ clearly centres around cultural and social aspects, it is also broad enough to implicate congenital physical features like common skin-colour and physique.233 As a consequence, potential overlap with racial groups is inevitable. Presumably for this reason,234 a tendency can be observed in post-Cold War jurisprudence and writing to remove reference to heritable physical traits from the definition of ‘ethnical’.235 This development is welcome, since otherwise the global progressive intermingling of human ‘races’236 would be coupled with a narrowing of protection not only for racial groups, but also for ethnical groups, which would certainly undermine the intended fall-back function of the latter within Article II.237 228

UN Doc. A/C.6/SR.73, 97 (Mr. Petren, Sweden). For orientation, see: Council of Europe (Parliamentary Assembly), Recommendation 1201 (1993), Article 1, infra, fn. 246. 230 See, for example: Hannum, VirginiaJIL 34 (1993–1994), 35–9. 231 The meaning under (c) especially so reflected in the New Testament of the Christian Bible. 232 According to Oxford Dictionary (854), ‘ethnic’ means (1) relating to a population subgroup (within a larger or dominant national or cultural group) with a common national or cultural tradition ...; (2) archaic: neither Christian nor Jewish; pagan or heathen. 233 See, for instance, Glaser, Droit international pe ´nal conventionnel, 111–2. 234 Schabas, Genocide in Int’l Law (2nd ed.), 146. 235 ICTR Akayesu, TC para. 513: ‘An ethnic group is generally defined as a group whose members share a common language or culture.’; In relation to the ILC Draft Code of Crimes Against the Peace and Security of Mankind, Special Rapporteur Doudou Thiam (UN Doc. A/CN.4/ 398, para. 58) held that, as opposed to racial groups, the ‘ethnic bond is more cultural. It is based on cultural values and is characterized by a way of life, a way of thinking and the same way of looking at life and things. ... The racial element, on the other hand, refers more typically to common physical traits.’ Kreß (IntCrimLRev 6 (2006), 461 (476) makes reference to the following aspects: common culture, history, way of living, language, religion. 236 As to the alleged scientific inaccuracy of the term, see: infra, mn. 58. 237 Supra, mn. 11. 229

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While a common national or racial identity flows from comparably tangible, 50 clear-cut criteria, the ethnical identity of a group is more difficult to establish. It must be ascertained by means of an overall assessment of the group’s cultural, historical, customary, lingual or religious features.238 The cumulative presence of these criteria is not required. Rather, common bonds on the basis of some (or even just one) of these aspects may be sufficient.239 In contrast to the so-called ‘subjective’ or ‘subjective-objective’ approaches outlined above, the correct approach dictates that collective self-perception as an ethnical group may only be drawn upon as a strong indicative factor of the existence of an ethnical group, but not as a constitutive element of ethnical groups.240 Concerns that on the basis of this limitation border-line cases like the situations in Rwanda and Sudan (Darfur) might be deprived of the Convention’s protection are largely unfounded. Certainly, in both instances the groups involved were generally indiscernible in terms of language, culture or religion. However, the victimized groups’ common identity had primarily crystallized around the distinct living conditions imposed by the Belgian colonizers (Rwanda) and the traditional demarcation lines between ‘African’ and ‘Arab’ tribes (Sudan).241 These historical and customary aspects are just as objective as language or religion, and there is no valid reason why a common identity built on such factors should be considered less constitutive for ethnical groups. On the other hand, not every common characteristic will qualify a set of persons 51 as an ethnical group, as such an approach would effectively undermine the exhaustive enumeration of groups in Article II242 and reverse the process of the limitation of its scope that occurred during the drafting process.243 In determining the eligibility of a given group feature, recourse may be taken to the abovementioned general requirements of groups.244 Accordingly, characteristics not usually determined by birth and not conveying a certain extent of permanence and stability to the group must be ruled out. The prerequisite size of an ethnical group is defiant to general specification245 and 52 must be determined on a case-by-case basis, in accordance with the requirements of permanence and stability.246 For instance, hunter-gatherer societies not possessing 238 See: Kreß (MK, § 6 VStGB, mn. 38) who also adds a subjective element to the list, holding that the above-mentioned criteria are relevant for ascertaining the existence of an ethnical group insofar as they build the fundamental aspects of a common identity. 239 Kreß, IntCrimLRev 6 (2006), 476, making reference to the Capotori Report (UN Doc. E/CN.4/ Sub.2/384/Rev.1), para. 568. 240 See supra, mns 41-46. 241 Kreß, IntCrimLRev 6 (2006), 476; Darfur Report (UN Doc. S/2005/60), paras 51–60; ICTR Akayesu, TC, 2 September 1998, paras 80–8. 242 The fact alone that some members of the Sixth Committee occasionally made reference to groups of considerable size like, for instance, the German minorities in Poland and the Sudeten Germans (UN Doc. A/C.6/SR.74, 100 (Mr. Raafat, Egypt)) does not suggest otherwise. For a different stance see: Kreß (IntCrimLRev 6 (2006), 476) according to whom ethnical groups need to be ‘large in number.’ 243 See supra, mn. 9. 244 See supra, mn. 31. 245 For a different opinion, see: Kreß, IntCrimLRev 6 (2006), 475–6. 246 See also: Council of Europe (Parliamentary Assembly), Recommendation 1201 (1993), Article 1: For the purposes of this Convention the expression ‘national minority’ refers to a group of persons in a state who ... (b) maintain longstanding, firm and lasting ties with that state; (c)

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Article II 52–55 the means of storage of food and goods necessarily remain small in number in order to retain their way of life, whereas ethnic minorities within modern-day societies may have to feature a certain size to remain stable and defy assimilation into the majority population. 53 Permanent residence on the territory of a particular State is also not required, as otherwise nomadic groups would potentially not fall within the scope of the Convention, even if characterized by distinct and permanent characteristics the loss of which would result in a cultural impoverishment of mankind.247 e. Racial group According to the prevalent definition, racial groups are characterized by common hereditary physical traits.248 Some authors have further refined this definition and applied it only to such features that determine a person’s basic outer appearance,249 and hence amount to a visually perceptible stigma of group members. In light of the rapid advancement of gene technology and decoding of human DNA, however, it may be wise to maintain a broader definition of ‘racial’. 55 In addition to sharing physical characteristics – and in contrast to prevailing opinion – racial groups presuppose minimal social bonds amongst their members.250 This is primarily suggested by a joint consideration of the protected groups and the genocidal acts stipulated in the second part of Article II. It seems safe to proceed upon the premise that each of the incriminated acts must in abstracto be apt to entail the destruction of any protected group in whole or in part.251 Accordingly, causing serious mental harm would also have to be suitable for the destruction of racial groups.252 However, a group which is held together solely by the physical traits of its members may prove to be unassailable by means of mental harm. This inconsistency could be dealt with either by non-application of Article II lit. (b) to racial groups – which would be irreconcilable with the provision’s clear wording – or preferably by ascribing a social dimension to the notion of ‘race’. The latter approach is further supported by the meaning that was attached to ‘race’ at the time of the Convention’s nascence. A brief review of the leading cases from 54

display distinctive ethnic, cultural, religious or linguistic characteristics; (d) are sufficiently representative, although smaller in number than the rest of the population of that state or of a region of that state; (e) are motivated by a concern to preserve together that which constitutes their common identity, including their culture, their traditions, their religion or their language.’ (Emphasis added). 247 See, however, Kreß, IntCrimLRev 6 (2006), 461 (476). 248 ICTR Akayesu TC 2. September 1998, para. 514: ‘The conventional definition of racial group is based on the hereditary physical traits often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors.’ 249 Kreß, MK, § 6 VStGB, mn. 41; Werle, Int’l Criminal Law (2nd ed.), mn. 718; Vest, Genozid durch organisatorische Machtapparate, 120; Safferling, JuS 2001, 738; US Genocide Convention Implementation Act 1987, Section 1093: ‘As used in this Chapter – ... (6) the term ‘racial group’ means a set of individuals whose identity as such is distinctive in terms of physical characteristics or biological descent.’ 250 The same view seems to be held by Mundorff, who feels that ‘[t]he existence of any ... racial ... group depends on the ability of that group to acculturate its children.’ (HarvardILJ 50 (2009), 93). 251 See also: infra, mn. 67. 252 See: ILC Draft Code of Crimes against the Peace and Security of Mankind (1996), 46: ‘The bodily harm or the mental harm inflicted on members of a group must be of such a serious nature as to threaten its destruction in whole or in part.’ Similarly: ICTY Krajisˇnik, TC, 27 September 2006, para. 862; ICTY Tolimir, TC, 12 December 2012, para. 738.

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post-war jurisprudence plainly reveals the common application of ‘race’ to groups who were not only defined by congenital physical features but also by common cultural, lingual or religious traits. In that vein, courts frequently referred to groups as being of the Jewish, Polish, Gypsy, German or Japanese ‘race’.253 In 1952, a UNESCO survey corroborated such a wide understanding of ‘race’ in ordinary language, although disapproving of it.254 The travaux pre´paratoires further reveal that some delegates of the Sixth Committee deemed ‘racial group’ as being largely synonymous with ‘ethnical group’ and hence disputed the need for the inclusion of the latter.255 Likewise, the experts of the Secretariat Draft Committee and members of the Ad Hoc Committee obviously shared this extensive understanding of ‘race’. Although they did not discuss the matter expressly, this is strongly suggested by the fact that otherwise the historical raison d’eˆtre of the Genocide Convention, the extermination of a large part of the European Jewish population, would possibly not have qualified as genocide.256 Moreover, even the present-day ordinary meaning of ‘race’ does not necessarily 56 exclude cultural aspects, as is evidenced by the synonymous usage of ‘human race’ and ‘humankind’,257 both of which notions are clearly not confined to the genetic side of human existence. Further indications can be gleaned from prominent UN articulations on the matter. For instance, according to the UN-ICERD of 1966258 the term ‘racial discrimination’ should extend to ‘any distinction, exclusion, restriction or 253 ‘Belsen Trial’, UNWCC-Series Vol. II 106, 110, 111: ‘Jewish race’; ‘Justice Trial’, UNWCCSeries Vol. VI 22: ‘Polish and Jewish races’, 64: ‘Jewish race’. ‘Ho¨ß-Trial’, UNWCC-Series Vol. VII 22: ‘... because of their race (Jews and Gipsies), nationality (Poles and Czechs), religion (Jews) or political convictions (socialists, communists and anti-Nazis)’, 24: ‘German Race’. ‘RuSHA-Trial’, UNWCC-Series Vol. XIII 17: ‘Measures, concerning mainly inhabitants of Poland, were taken to prevent their reproduction and thus contribute to the destruction of nonGerman races.’, 41: ‘Jews, Gypsies and other racial groups’; ‘Zuehlke-Trial’, UNWCC-Series Vol. XIV 145: ‘Jewish race’; IMTFE, judgment, 593, 586, 707: ‘Japanese race’. For further evidence of the historical meaning of ‘race’ see: Schabas, Genocide in Int’l Law (2nd ed.), 140–2. 254 UNESCO, The Race Concept, 99: ‘To most people, a race is any group of people whom they choose to describe as a race. Thus, many national, religious, geographic, linguistic or cultural groups have, in such loose usage, been called ‘race’, when obviously Americans are not a race, nor are Englishmen, nor Frenchmen, nor any other national group. Catholics, Protestants, Moslems and Jews are not races, nor are groups who speak English or any other language thereby definable as a race ....’ 255 UN Doc. A/C.6/SR.75, 114 (Mr. Raafat, Egypt), ibid., 114 (Mr. Manini y Rı´os (Uruguay), ibid., 115 (Mr. Kackenbeeck, Belgium). See supra, mn. 11. 256 In spite of the Nazis’ eager attempts to define the phenotypic determinants of a ‘Jewish race’, after centuries of diaspora and intermingling with non-Jewish population, a solely genetic identification of persons as ‘Jewish’ would have been doomed to failure. Likewise, the notion ‘religious group’ would not have ensured protection: First, at least irreligious victims or converts of Jewish descent would not have been embraced. Second, the Nazis’ genocidal intent was not primarily directed against the Jewish religion (‘Aryan’ converts to Judaism were not persecuted as ‘Jews’) and therefore not carried out ‘on grounds of religious belief of its members’, as required by the Ad Hoc Committee Draft (supra, mn. 26). Neither would the protection of Jews as an ‘ethnical group’ have offered a remedy, as that type of group was not introduced before the discussions of the Sixth Committee (supra, mn. 11). See also the statements of the World Jewish Congress (30 July 1947, UN Doc. E/C.2/52) and of the Consultative Council of Jewish Organizations (24 July 1947, UN Doc. E/C.2/49) which do not indiciate any doubt that the group of Jews would fall within the protective scope of the Secretariat Draft. 257 Oxford English Dictionary, 854 (‘human race’). 258 United Nations International Convention on the Elimination of All Forms of Racial Discrimination, 7 March 1966, effective 4 January 1969.

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Article II 56–59 preference based on race, colour, descent, or national or ethnic origin’.259 In addition, the UN Secretary General’s report of the World Conference on Human Rights of 1993 states that ‘[e]ducation should promote understanding, tolerance, peace and friendly relations between the nations and all racial or religious groups.’260 The growth of understanding between racial groups, however, supposes a pre-existing understanding amongst the members of a racial group and thus shows that the Secretary General assumed some extent of cultural ties between members of racial groups. 57 While the required extent of the social bonds between members of racial groups cannot be defined with precision, it is possible to lay out a general framework. On one hand, the social element must be strong enough to tie the group together, since otherwise its impairment by the perpetrator (inter alia by causing serious mental harm to group members) would not constitute an abstract threat of destruction for the group. On the other hand, social relations need not be so strong as to create national, ethnical or religious groups, as racial groups would then be dispensable as a stand-alone category under Article II. 58 Finally, it should be noted that the prevailing renunciation of the existence of different human races amongst biologists, repeatedly seized on by international movements against racism,261 does not challenge the protection of ‘racial groups’ under the Convention. At least on the basis of the foregoing interpretation, the notions of ‘race’ employed are manifestly different, as in terms of Article II ‘race’ involves a social dimension, unlike the biological definition262 which only requires common physical traits.263 f. Religious group 59

The definition of ‘religion’ is fraught with uncertainty. While other disciplines display a colourful range of approaches,264 proposals made by legal scholars oscillate 259 UN-ICERD Part I, Article 1 (1), emphasis added. The entire passage reads: ‘In this Convention, the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.’ 260 UN Doc. A/CONF.157/24 (Part I), 13 October 1993, para. 33. 261 UNESCO, The Race Concept, 98–103; European Union, Council Directive 2000/43/EC, 29 June 2000, para. 6: ‘The European Union rejects theories which attempt to determine the existence of separate human races. The use of the term ‘racial origin’ in this Directive does not imply an acceptance of such theories.’ 262 UNESCO, The Race Concept, 98: ‘In short, the term ‘race’ designates a group or population characterized by some concentrations, relative as to frequency and distribution, of hereditary particles (genes) or physical characteristics, which appear, fluctuate, and often disappear in the course of time by way of geographic and/or cultural isolation’. 263 Similarly: Kreß, MK, § 6 VStGB, mn. 41. 264 For an early anthroplogical perspective, see: Tyler, Primitive Culture, 424: ‘the belief in spiritual beings.’ In 1993, American anthropologist Geertz (Religion as a cultural system, 90) defined religion as a ‘system of symbols which acts to establish powerful, pervasive, and long-lasting moods and motivations in men by formulating conceptions of a general order of existence and clothing these conceptions with such an aura of factuality that the moods and motivations seem uniquely realistic.’ In sociology, Durkheim (The Elementary Forms of the Religious Life, 47) held that religion constitutes a ‘unified system of beliefs and practices relative to sacred things’, wherby ‘sacred things’ meant things ‘set apart and forbidden — beliefs and practices which unite into one single moral community called a Church, all those who adhere to them’. Philosophers defined

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between unduly restrictive265 and excessively broad.266 International jurisprudence has largely chosen to avoid the issue and has turned to tautologies rather than clearcut definitions.267 The precise meaning of ‘religious’ was not discussed during the drafting process. Nevertheless, the Convention’s wording and the travaux pre´paratoires provide some guidance as to how it should be interpreted in the context of the Convention. First, in reference to the ge´nocidaire’s motives, the Ad Hoc Committee agreed that in regard to religious groups, the crime had to be committed ‘on grounds of the ... religious belief ... of its members.’268 As opposed to the notion of ‘knowledge’, ‘belief’ points to the sphere of metaphysics, the elements of which are amenable to confession rather than perception. Further, in due consideration of the ordinary meaning of ‘religion’, the large scope of metaphysics can be narrowed down to belief in a superhuman controlling power, especially – but not necessarily – a personal god or gods.269 A third guiding element can be drawn from Norway’s statement in the Sixth Committee which highlighted that renouncing membership of a religious group encounters far greater difficulty than membership of a political party.270 This indicates, when coupled with the common characteristics of the other groups – stability, permanence and membership usually determined by birth271 – that ‘religious’ must be construed as referring to such beliefs as are deeply embedded and strongly determinant of a person’s mindset, and which are therefore not prone to quick change, even if legally the person would be free to do so. Finally, religious groups can be negatively distinguished from groups which have some notional overlap, but which should clearly not be protected under the Convention. For the most part, this applies to political groups, which were deleted from the draft after lengthy discussions,272 and to economical groups, which similarly failed to be included.273 The line between these groups should be drawn by reference to the religion as ‘one’s way of valuing most comprehensively and intensively’ (Ferre´, Basic Modern Philosophy of Religion, 82), or as a ‘the state of being ultimately concerned’ (Tillich, Dynamics of faith, 1.). According to the ethologist and prominent critic of theism, C.R. Dawkins, religious faith constitutes ‘a fixed false belief.’ (Dawkins, The God Delusion, 5.). 265 For instance: Shaw (in: Dinstein, International Law at a Time of Perplexity, 807), according to whom a religious group requires the existence of ‘a coherent community based upon a concept of a single, devine being ... and that such a community is not engaged, for example, in criminal practices’. Pursuant to this definition, polytheistic beliefs like Shinto¯ would not count as a religion under Article II. 266 For instance: Lippman (TempIntlCLJ 8 (1994), 29), who feels that ‘[r]eligious groups encompass both theistic, non-theistic, and atheistic communities which are united by a single spiritual ideal’. However, the notion of non- or atheistic communities united under a spiritual ideal would easily extend to rituals of homage and quasi-divinization of totalitarian political leaders as practised, e. g., under hitlerism, stalinism, maoism or presently in North-Korea. This would dissolve the distinction between protected groups and political groups, the latter of which were deliberately deleted from Article II by the Sixth Committee (supra, mn. 9). 267 ICTR Akayesu, TC, 2 September 1998, para. 515: ‘The religious group is one whose members share the same religion, denomination or mode of worship.’ Similarly: ICTR Kayishema and Ruzindana, TC, 21 May 1999, para. 98. See also: Darfur Report (25 January 2005), para. 494: ‘The expression ‘religious groups’ may be taken to encompass sets of individuals having the same religion, as opposed to other groups adhering to a different religion.’ 268 Ad Hoc Committee Draft Commentary (UN Doc. E/794), 13 (emphasis added). 269 Oxford English Dictionary, 1500 (‘religious’, para. 1: ‘... faith in a devine being’). 270 UN Doc. A/C.6/SR.69, 61 (Wikborg, Norway); similar: A/C.6/SR.74, 99 (Abdoh, Iran). 271 Supra, mn. 31. 272 Supra, mn. 9. 273 Supra, mn. 10.

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Article II 59, 60 group’s focus of activity.274 Accordingly, groups predominantly carrying out activities for political or economical purposes will not qualify as religious groups, even if they feature certain elements that are similar or related to religious faiths or cults.275 Pulling these aspects together, the following definition of religious groups can be assembled: For the purposes of the Convention, religious groups are groups whose members share a deeply entrenched belief in a metaphysical controlling power, and whose activities are focused on the fulfilment of their belief’s maxims. As a consequence, most atheistic worldviews do not fall under the purview of the Convention.276 Although this finding appears to clash with the welcome recent tendency in human rights law to extend the freedom of religion to atheistic concepts,277 it is quite consonant with the Convention’s underlying philosophy of protecting groups as the ‘spiritual resources’ of mankind,278 since a group which asserts its common interest in negating a particular worldview cannot be deemed to deliver a coherent contribution to the multiplicity of the world. Moreover, fitting atheist groups into the notion of religious groups would circumvent the abovementioned rule that the group-element must be defined positively and not through the absence of certain characteristics. g. Other groups? 60

The enumeration given in Article II is exhaustive.279 This can be inferred not only from the absence of an opening clause in the norm’s wording,280 but also from the deletion of such a clause and the progressive narrowing of the article’s protective scope during the drafting process.281 Nevertheless, owing to the vast diversity of atrocities committed since the Convention entered into force in 1951, numerous attempts have been undertaken to extend the protective ambit to

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Kreß, IntCrimLRev 6 (2006), 479. For example, the following groups would not qualify as religious groups: totalitarian parties which venerate their leaders in a cult-like manner (see supra, fn. 266); political parties featuring a programmatic reference to a certain religion, like the ‘Christian Democrats’ in some European Countries or the ‘Pakistan Muslim League Quaid-e-Azam’; executive or military units like the Iranian ‘Army of the Guardians of the Islamic Revolution’. The same applies to organisations which predominantly engage in profit-seeking activities under the mere pretext of religious practice. See in this context the decision of the UN Human Rights Committee of 8 April 1994 (CCPR/C/50/570/ 1993) regarding the case of a self-appointed ‘church’ which engaged in drug trafficking for alleged cultic purposes. Unfortunately, the Committee found the communication inadmissible and did not consider its merits. 276 Confessions, which do not follow the concept of a personal god or gods (and may in this sense be labled ‘atheistic’) but involve reference to metaphysical powers would still qualify as a religion under Article II, e. g. some forms of Buddhism (see: Kedar, Comparative Religion, 50). 277 See, in particular: UN Human Rights Committee: General Comment No. 22: The right to freedom of thought, conscience and religion (Article 18), 30 July 1993 (CCPR/C/21/Rev.1/Add.4), para. 2: ‘Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief ....’ 278 Supra, mn. 8. 279 Schabas, Genocide in Int’l Law (2nd ed.), 151; Schabas, in: Triffterer, ICC Statute (2nd ed.), Article 6 para. 9; Drost, The Crime of State, Vol. II: Genocide (1959), 80; Kreß, MK, § 6 VStGB, mn. 32; Kreß, 6 International Criminal Law Review (2006), 461 at 473; Werle, Int’l Criminal Law (2nd ed.), mn. 707; ICTY Krstic´, TC, 2 August 2001, para. 554. 280 Schabas, Genocide in Int’l Law (2nd ed.), 150. 281 See supra, mn. 9. 275

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groups that do not come under any of the Convention’s four categories.282 One early academic approach completely pushed aside the privileging of national, ethnical, racial and religious groups and argued in favour of applying the Convention to any group whatsoever.283 Similarly, in Akayesu the ICTR Trial Chamber took the view that the Convention sought to ensure the protection of any ‘permanent and stable’ group, and that express mention of certain groups was made for the sole purpose of providing illustrative examples of this general idea.284 Another extensive yet somewhat contrary approach was taken by the ICTY Trial Chamber in Jelisic´, according to which groups under Article II could also qualify by not displaying the characteristics of a certain national, ethnical, racial or religious group (from the perpetrator’s perspective).285 All of these understandings, however, tread well beyond the limits of the ordinary meaning of the article’s wording and its genesis and thus require no further consideration here. Other authors suggest drawing on customary law to fill ostensible lacunae of the Convention.286 Though unobjectionable from a methodical point of view, this approach raises doubts with regards to interpretation of the ICC-Statute, which adhered to the restrictive wording of the Genocide Convention and has been ratified by an increasing majority of states.287 Considering such far-reaching approval within the international community, any attempt to find customary law which extends the scope of protected groups must be doomed to failure. Furthermore, the rapid advancement of international criminal law since the end of the Cold War has dramatically decreased the need to extend the notion of genocide beyond its conventional definition, as acts which aim at the destruction of groups not covered by the Convention generally constitute crimes against humanity,288 particularly so in cases of extermination, forced pregnancy, enforced sterilization and persecution.289

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See: Schabas, Genocide in Int’l Law (2nd ed.), 117–8. Drost, Genocide, 122–3. 284 ICTR Akayesu, TC, 2 September 1998, paras 511, 516, 701–2. 285 ICTY Jelisic ´, TC, 5 July 2001, para. 71. 286 Van Schaack, 106 YaleLJ, 2280–2; Lyman Bruun, 17 MarylandJILT 210–8. 287 Status as at 2 May 2013: 139 signatories, 122 parties. 288 See: Schabas, Genocide in Int’l Law (2nd ed.), 119, additionally citing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the statutes of the ICTY and ICTR . 289 Article 7 ICC Statute: Crimes against humanity 1. For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: ... (b) Extermination; ... (g) ... forced pregnancy, enforced sterilization ...; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; .... 2. For the purpose of paragraph 1: ... (b) ‘Extermination’ includes the intentional infliction of conditions of life, inter alia the depriation of access to food and medicine, calculated to bring about the destruction of part of a population; (f) ‘Forced pregnancy’ means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. ...; (g) ‘Persecution’ means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity; .... 283

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Article II 61, 62 2. Individual acts of genocide a. Killing members of the group Killing members of the group means causing the death290 or, more precisely, diminishing the natural lifespan291 of at least two persons belonging to the same protected group.292 However, the prevailing interpretation proposes that despite the pluralized term ‘members’, killing a single victim is sufficient to complete the crime.293 Schabas holds that any interpretation to the contrary would seem ‘a bit absurd’ and submits that the phrase could just as easily apply to a single act of killing.294 The latter aspect is elucidated by Satzger who explains that the general prohibition of killing other persons can be formulated by using the singular (you must not kill another person) or the plural (you must not kill other persons) without any difference in meaning.295 62 While this finding as such is indisputably accurate, it would nevertheless seem to disregard the context of the chapeau of Article II which speaks of ‘any of the following acts’. This phrase makes clear that ‘killing members of the group’ spells out the incriminated individual act of the perpetrator, and not the underlying general rule ‘thou shalt not kill’. Read in context, therefore, the wording quite unambiguously requires the killing of at least two persons. Moreover, consideration should be given to the context of the genocide provisions within the statutes of the ICTY, ICTR and ICC, as well as the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia296 and the ILC Draft Codes of Crimes against the Peace and Security of Mankind of 1954 and 1996. All of these weighty codifications consistently chose to retain the plural within the definition of genocide297 whilst placing it in the immediate vicinity of crimes against humanity and war crimes, which clearly indicate if a given act requires a plurality of victims or a single person only.298 This, along with the fact that all four criminalized acts consistently stipulate a plurality of victims (‘members, group, births, children’), indicates that the plural form used in Article II lit. (a) should indeed be taken seriously. Particularly with respect to the ICC-Statute, an additional problem arises 61

290 Kreß, IntCrimLRev 6 (2006), 480. See also: ICC Elements of Crimes, Article 6 lit. (a) (1), fn. 2: ‘The term ‘killed’ is interchangeable with the term ‘caused death’. 291 Kreß, MK, § 6 VStGB, mn. 48, referring to § 6 (1) No. 1 VStGB. 292 Khan/Dixon/Fulford, International Criminal Courts, § 13–32. See also: U.S. Code; Chapter 50A; Section § 1093: ‘As used in this chapter – ... (4) the term ‘members’ means the plural; ....’ 293 ICTR Akayesu, TC, 2 September 1998, para. 473; ICTR Kajelijeli, TC, 1 December 2003, para. 757; ICTR Semanza, TC, 15 May 2003, para. 377; ICTR Gacumbitsi, TC, 17 June 2004, para. 255. IStGH v. 12. 7. 2010, ICC Al Bashir, PTC, 12 July 2010, para. 20; Werle, Int’l Criminal Law (2nd ed.), mn. 726; Schabas, Genocide in Int’l Law (2nd ed.), 179; Jeßberger, in: Gaeta, Genocide Convention, 97; Kreß, IntCrimLRev 6 (2006), 480; Kreß, MK, § 6 VStGB, mn. 49. 294 Schabas, Genocide in Int’l Law (2nd ed.), 179. 295 Satzger, Int’l and Eur. Crim. Law, § 14 mn. 19, (252); For a different view, see: Cassese, International Criminal Law (2nd ed.), 134. 296 Law on the Establishment of the Extraordinary Chambers, with inclusion of amendments as promulgated on 27 October 2004 (NS/RKM/1004/006). 297 Article 4 para. 2 lit. (a) ICTY Statute; Article 2 para. 2 lit. (a) ICTR Statute; Article 6 lit. (a) ICC Statute; Article 4 Law of the Establishment of the ECCC; Article 2 para. 10 (i) ILC-Draft (1954); Article 17 lit. (a) ILC-Draft (1996). 298 See, for instance, Article 7 para. 1 ICC-Statute (Crimes Against Humanity): ‘... ‘crimes against humanity’ means any of the following acts ...: (a) Murder; ... (d) Deportation or forcible transfer of population; ... (i) Enforced disappearance of persons; ....’ Emphasis added.

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as to how the prevailing extensive interpretation of the term ‘members’ can be reconciled with the precept of Article 22 para. 2 ICC-Statute, which states that ’[t]he definition of a crime shall be strictly construed and shall not be extended by analogy.’ Without addressing the issue, an ICC Pre-Trial Chamber adopted the extensive approach by reference to the ICC-Elements of Crimes, according to which the killing of one person would suffice.299 Pursuant to Article 9 para. 1 ICC-Statute, however, the Elements only play an assisting role and must not be drawn upon to warrant a softening of the definitions of crimes or the standards set out in Article 22 ICC-Statute. Moreover, this Element cannot be seen as reflecting a customary (binding) rule of interpretation, despite its far-reaching approval by the ICC member-States. Quite to the contrary, classifying the rule as an Element of Crimes rather than altering the statutory definition of the crime conclusively indicates the absence of the required opinio iuris. Further, even aside from the technical aspects of interpretation and the nullum-crimen-principle, the restrictive approach proposed here also corresponds to the Convention’s protective purposes. It should be recalled that the protection of individuals under the Convention is strictly subsidiary and accessory to the protection of groups. Hence, while non-criminalization of a single killing would be flawed from the person-centric perspective of crimes against humanity or domestic criminal law, it is perfectly consonant with the groupcenteric concept of genocide. In addition, a literal understanding of ‘members’ would better validate the 63 conception of genocide as the ‘crime of crimes’: From an abstract perspective, the crime of genocide has been rightfully ‘crowned’300 as the crime of utmost evil.301 On the other hand, the makers of the Convention brought the point of punishability forward to such an early stage that the damage actually committed by perpetrators in the meaning of the Convention may, in fact, be very limited. A moderate raising of the objective requirements of the offence would help to fill this normative gap and underscore the crime’s decisive feature as a crime against a plurality of persons. Furthermore, the interpretation proposed here enhances legal certainty. In this 64 respect, it seems quite unfortunate that the core element of genocide, the destruction of groups, makes its appearance solely within the intangible and enigmatic sphere of the mens rea of the crime. After all, it is this destructive intention only that transforms an ordinary crime into the worst of ‘the most serious crimes of concern to the international community a whole,’302 and even empowers the UN Security Council to take measures under Chapter VII of the UN Charter in accordance with the concept of the ‘responsibility to protect’.303 Improving the 299 ICC Elements of Crimes, Article 6 lit. (a), Element (1): ‘The perpetrator killed one or more persons.’ 300 Akhavan, JIntCrimJust 3 (2005), 989, 997. 301 Kreß (IntCrimLRev 6 (2006), 461, 464) has rightly pointed out that the popular idiom of the ‘crime of crimes’ somewhat conflicts with the Nuremberg categorization of aggressive war as the ‘supreme crime under international law’. However, it may be added that at Nuremberg, the French prosecutor Champetier de Ribes also referred to genocide as the ‘greatest crime of all’ ((1947) 19 IMT 562). 302 Preamble, Article 5 para. 1 ICC Statute. 303 2005 World Summit Outcome, UN Doc. A/60/L.1, para. 139: ‘... In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and

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Article II 64–66 predictability of legal decisions should hence be the foremost desideratum regarding genocide. The present approach adds to legal certainty by adding a material requirement which also constitutes a strong indication of genocidal intent: A perpetrator who goes as far as killing a plurality of group-members is certainly more likely to have the aim of destroying the group, in whole or in part, than a person who commits a single homicide.304 65 Finally, even on the basis of the restrictive approach proposed here, lacunae within the Convention’s coverage should not be feared, since the killing of just one person of a protected group may be punishable as attempted genocide, or, as the case may be, complicity in genocide according to Article III lit. (d), (e). b. Causing serious bodily or mental harm to members of the group 66

According to the findings of the ICTR Trial Chamber in Kayishema and Ruzindana,305 bodily harm can manifest itself in three different forms: First, injury to the external or internal organs or to the senses;306 second, spoiling the outer appearance of a person (disfigurement); and third, injury to a person’s health, which covers the impairment of a person’s overall physical conditions. Further judgments by the Ad Hoc Tribunals suggest physical suffering and pain should be considered as a fourth variant of bodily harm.307 Irrespective of its form in a given case, the bodily harm inflicted needs to meet a certain threshold, roughly indicated by the word ‘serious’. Opinion on how to specify this vague term is divided. The highest standards are set by the ILC, requiring that ‘the bodily harm or the mental harm inflicted on members of a group must be of such serious nature as to threaten its destruction in whole or in part.’308 This excessively narrow interpretation finds some support in the travaux pre´paratoires. The driving force behind installing a threshold requirement in paragraph (b), the United Kingdom’s delegate Fitzmaurice, argued that it would seem inappropriate to extend the notion of genocide to acts which were of little importance in themselves and ‘not likely to lead to the physical destruction of a group.’309 national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. ...’ 304 This corresponds with the widely acknowledged standard of proving genocidal intent, according to which the required dolus specialis can inter alia be inferred from the scale of the atrocities committed and the repetition of destructive and discriminatory acts. See, for instance: ICTY Jelisic´, AC, 5 July 2001, para. 47. 305 ICTR Kayishema and Ruzindana, TC, 21 May 1999, para. 109; ICTY Krstic ´, TC, 2 August 2001, para. 510; ICTY Blagojevic´, TC, 17 January 2005, para. 645. 306 This is in line with the rather concise remark by the ILC Draft Commentary (1996) 46: ‘bodily harm ... involves some type of physical injury ....’ 307 Expressly so: ICTY Krstic ´, TC, 2 August 2001, para. 511 (‘physical suffering’). See also: ICTY Stakic´, TC, 31 July 2003, para. 516: ‘Causing serious bodily or mental harm’ in sub-paragraph (b) is understood to mean, inter alia, acts 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 injury.’ Equally ICTY Brd-anin, TC, 1 September 2004, para. 690. Similarly: ICC Elements of Crimes, Article 6 lit. (b), fn. 3. However, as the Chambers and the ICCElements of Crimes give a combined definition of bodily and mental harm, it is not entirely clear to which extent the given examples are deemed to reflect bodily harm or mental harm. 308 ILC Draft Commentary (1996), 46. 309 UN Doc. A/C.6/SR.81, 175 (Mr. Fitzmaurice, United Kingdom), emphasis added. Similarly: ibid., 175 (Mr. Sundaram, India).

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Nevertheless, the ILC’s stance seems to hinge upon a misinterpretation of the crime’s basic structure. None of the acts enumerated in the second part of Article II expressly require a concrete aptitude to bring about the destruction of groups in a given case. This can primarily be inferred e contrario from the fact that within the subsequent paragraph (c) the term ‘calculated to’, rightly construed, stipulates that the conditions imposed upon the group in fact need to be capable of causing its destruction. Moreover, there is no practical need for such a drastic curtailing of Article II lit. (b), since the issue of using ineligible means can be duly considered while establishing the perpetrators ‘intent to destroy’; this element should be hard to prove in cases where the defendant’s act was ineffectual in contributing to the desired destruction.310 According to an alternative understanding proposed by Gorove in 1951, bodily harm should be considered ‘serious’ when it creates a substantial risk of fatal consequences.311 While this approach may bring a certain gravity to Article II lit. (b), in line with the act of ‘killing’ under paragraph (a), it fails to consider that even injuries involving fatal risks may heal quickly and pass without having a measurable impact on the integrity of the protected group. These shortcomings are omitted in the well balanced interpretation of the term ‘serious’ which has evolved within the jurisprudence of the Ad Hoc Tribunals. According to their approach, the harm inflicted need not be permanent or irremediable312 but demands ‘a grave and long-term disadvantage to a person’s ability to lead a normal and constructive life.’313 As opposed to ‘bodily harm’, the precise content of ‘mental harm’ is by nature more difficult to pinpoint.314 The ILC loosely defined it as ‘involving some type of impairment of mental faculties.’315 In his early commentary on the Convention, Robinson endorsed a radical confinement of the scope of ‘causing’ mental harm to the use of narcotic drugs.316 However, this interpretation overemphasizes the historical reason for extending paragraph (b) to mental harm (the production and use of narcotics against the Chinese population by Japan)317 and finds no support in 310 Similarly: Schabas, Genocide in Int’l Law (2nd ed.), 182, according to whom the ILC’s interpretation ‘indicates a confusion between the mental element of the chapeau and the material element of paragraph (b).’ 311 Gorove, WashULQ 174 (1951), 174, 183. 312 ICTR Akayesu, TC, para. 502; ICTY Krstic ´, TC, 2 August 2001, para. 513; ICTY Blagojevic´ and Jokic´, TC, 17 January 2005, para. 645; ICTY Brd-anin, TC, 1 September 2004, para. 690. Endorsed by, inter alia, Satzger, Int’l and Eur. Crim. Law, § 14 mn. 20 (252); Kreß IntCrimLRev 6 (2006), 461, 481. 313 ICTY Krstic ´, TC, 2 August 2001, para. 513; ICTY Blagojevic´, TC, 17 January 2005, para. 645; ICTY Tolimir, TC, 12 December 2012, para. 738. 314 See: Lord Wensleydale in Lynch v. Knight (9 H. L. Cas. 577, 598 (1861)): ‘Mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone.’ Gorove, WashULQ 174 (1951), 174, 180. 315 ILC Draft Commentary (1996), 46. A very similar definition was used in the Report of the Preparatory Committee on the Establishment of an International Criminal Court, Part 2 (UN Doc. A/CONF. 183/2/Add.1, 14 April 1998, 11) and by the ICTY Trial Chamber in Krstic´ (2 August 2001, para. 510). 316 Robinson, Genocide Convention, ix. The use of narcotics as a means to cause mental harm is explicitly embraced by the US provision on genocide (U.S. Code; Chapter 50A; Section § 1091 (a) (3): ‘... causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques ....’ 317 Supra, mn. 15.

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Article II 70, 71 the wording of the provision or in subsequent practice. The ICTY Trial Chamber in Krstic´ found a link between paragraph (b) and the offence of ‘wilfully causing great suffering or serious injury to body or health’ under Article 2 ICTR-Statute, equating ‘mental harm’ with ‘mental suffering’.318 As a consequence of such vagueness, international practice and some authors have largely refrained from direct definitions of the required result and instead have turned to laying down a series of acts which are generally likely to cause, or at least capable of causing, mental harm. In its Akayesu judgment, the ICTR Trial Chamber deemed the acts of torture, inhumane or degrading treatment, and persecution to be candidates for causing ‘mental harm’.319 Several ICTY Trial Chambers amended this list, adding deportation, sexual violence including rape, and interrogations combined with beatings and threats of death.320 Similarly, a footnote to the ICC-Elements of Crimes remarks that the required conduct under paragraph (b) ‘may include, but is not necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment.’321 Although this typecasting method has its merits, its value for determining the causing of ‘mental harm’ should not be overstated. It is important to point out that this jurisprudence and Elements of Crimes do not provide a definition of mental harm, but only facilitate its ascertainment in a given case and may thus best be conceived of as demonstrating procedural rules of evidence which are extraneous to the material content of Article II. Moreover, some of the exemplary acts are remarkably nondescript and hardly suitable to reliably indicate the cause of mental harm. This particularly applies to the term ‘degrading treatment’.322 71 Against the backdrop of such definitional blur, it is all the more important to specify the required extent of ‘serious’ mental harm. Basically, the same standard applies as in the case of bodily harm, that is, the requirement of ‘a grave and longterm disadvantage to a person’s ability to lead a normal and constructive life.’323 Specifically with respect to mental harm, the ICTY Trial Chamber in Krstic´ further elucidated that a distinction needs to be drawn between ‘serious mental harm and emotional or psychological damage or attacks on the dignity of the human person not causing lasting impairment’,324 and that the required harm needs to go ‘beyond temporary unhappiness, embarrassment or humiliation.’325 Indeed, in light of the Convention’s protective purposes, it is the harm’s persistence and prolonged effect on a person’s social abilities which constitutes the pivotal factor of seriousness, 318

ICTY Krstic´, TC, 2 August 2001, para. 511. ICTR Akayesu, TC, 2 September 1998, para. 504. 320 ICTY Stakic ´, TC, 31 July 2003, para. 516; ICTY Brd-anin, TC 1 September 2004, para. 690. The effects of deportation were added by: ICTY Krstic´, TC, 2 August 2001, para. 513; ICTY Blagojevic´, TC, 17 January 2005, para. 646. 321 ICC-Elements of Crimes, Article 6 lit. (b), fn. 3. 322 Similarly: Kreß, IntCrimLRev 6 (2006), 480; Akhavan, JIntCrimJust 3 (2005), 1004. 323 ICTY Krstic ´, TC, 2 August 2001, para. 513; ICTY Blagojevic´ and Jokic´, TC, 17. January 2005, para. 645; similarly: ICTR Semanza, TC, paras 321, 322; ICTR Ntagerura et al., TC, 25 February 2004, para. 664. See also: Report of the Preparatory Committee on the Establishment of an International Criminal Court, 14 April 1998, A/CONF.183/2/Add.1 11 fn. 3: ‘The reference to ‘mental harm’ is understood to mean more than the minor or temporary impairment of mental faculties.’ 324 ICTY Krstic ´, TC, 2 August 2001, para. 510. 325 ICTY Krstic ´, TC, 2 August 2001, para. 513; ICTY Tolimir, TC, 12 December 2012, para. 738. 319

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rather than the immediate mental effects of the act, however grievous they may be. For it is only such individual psychological injuries that take a destructive toll upon the group as a whole by impairing the social interactions within the group over a period of time. On the other hand, in a given case at the time of the judgment, any long-term damage may not yet have arisen and therefore would have to be judged predictively. In such instances, the severity of the treatment and the gravity of its immediate mental effects may be drawn upon as indicative of their persistence.326 The causing of serious bodily harm and the causing of serious mental harm, 72 although contained within the same paragraph, are two distinct criminal acts and must not be merged into one. Accordingly, in an instance where the bodily harm and mental harm inflicted would, seen individually, fall below the required threshold of seriousness, but taken together would constitute serious harm, the requirements for the crime of genocide to have taken place would not be fulfilled. Concededly, the wording is somewhat ambiguous on this point as it may be read either as ‘causing serious bodily harm or causing serious mental harm’ or ‘causing serious harm, bodily or mentally’. However, the provision’s genesis reveals that the addition of mental harm to paragraph (b) was by no means intended to alter the requirements of bodily harm, but merely to extend the provision to the causing of mental harm, primarily through the administration of narcotic drugs.327 Moreover, in view of the progressive solidification of the nullum crimen principle and its prominent enshrinement in Article 22 ICC-Statute, it stands to reason that in cases of grammatical ambiguity the definition shall be interpreted in bonam partem (Article 22 para. 2 ICC-Statute). Nevertheless, a marked tendency in current jurisprudence can be observed to blend the two crimes together.328 Finally, just as in the case of paragraph (a), causing serious bodily or mental 73 harm to members of the group demands the infliction of such harm upon at least two persons. Alongside the reasons given above,329 this interpretation also contributes to narrowing down the aforementioned friction between the prevailing interpretation of the term ‘serious’ and its historical understanding by members of the Sixth Committee as requiring the likelihood of entailing a group’s destruction. c. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part The acts described in paragraph (c) have been referred to, quite graphically, as 74 ‘measures of slow death’.330 Doubts could be raised as to the requirements of the recipient of such measures, as the first part of the phrase suggests that the act must be directed at a group in its entirety, while the second part indicates that targeting 326 This method was implicitly applied by the ICTY Trial Chamber in Blagojevic ´ and Jokic´ (17 January 2005, paras 646–9), which referred to the excruciating circumstances of a mass-execution and concluded that the fear suffered by the survivors ‘is a traumatic experience from which one will not quickly – if ever – recover.’ Similarly: ICTY Tolimir, TC, 12 December 2012, para. 755. 327 Supra, mn. 15. 328 This tendency primarily manifests itself in the occasional usage of ‘bodily and mental harm’ instead of ‘bodily or mental harm’ (ICTY Blagojevic´ and Jokic´, TC, 17 January 2005, para. 647; ICTY Krstic´, TC, 2 August 2001, para. 509) and the combined definition of ‘bodily and mental harm’ (ICTY Stakic´, TC, 31 July 2003, para. 516, ICTY Brd-anin, TC, 1 September 2004, para. 690). 329 Supra, mns 61-65. 330 Werle, Int’l Criminal Law (2nd ed.), mn. 730; Nsereko, in: MacDonald/Swaak-Goldman, Substantive and Procedural Aspects, 129; Satzger, Int’l and Eur. Crim. Law, § 14 Rn. 21 (252).

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Article II 74, 75 part of the group would be sufficient. The correct interpretation is that the imposition of destructive measures on part of a group is sufficient. The opposite interpretation would drastically reduce the norm’s applicability and undermine its protective purpose, as, taken literally, the infliction of deadly conditions would not embrace ‘the group’ as a whole if even a single group member were to escape persecution. Furnished with a ‘right to existence’331 and protection not derived from their members, under the Convention groups embody distinct entities, not unlike legal persons. From this point of view, measures imposed upon a number of group members can be deemed as having been inflicted upon the whole group as a quasi legal person, just like injuries to a particular body part viewed as being inflicted on a natural person.332 Finally, attention should be drawn to the fact that the Ad Hoc Committee referred to the destructive living conditions in the Jewish Ghettos within German occupied territory during the Second World War as an example of the sort of conditions falling under the purview of (a draft version of) paragraph (c).333 Clearly, only a part of the targeted Jewish population all-over occupied Europe was subjected to these conditions. 75 The measures chosen by the perpetrator need to be ‘calculated to bring about’ the group’s destruction, in whole or in part. Although the term ‘calculated’ may easily be mistaken to be a synonym of ‘intentional’ or ‘purposeful’, it is generally construed as also including a material element.334 This is convincingly supported by the argument that otherwise the term would be entirely absorbed by the specific intent requirement in the chapeau,335 which would run afoul of the well-established interpretative principle in international law that proper meaning should be assigned to every term within a legal text.336 This understanding is further bolstered by the drafting history of the provision. Discussions in the Sixth Committee centred around three competing amendments to the Ad Hoc Committee’s draft.337 The Soviet delegation sought to retain the wording ‘aimed at’,338 which was understood as a purely subjective element of intent.339 The Uruguayan amendment featured a fully objective element (‘likely to cause’),340 whilst the United Kingdom proposed a combination of both (‘intended and likely to cause’).341 During an adjournment 331

General Assemby Resolution 96(1). At this point, it may be recalled that the GA Resolution 96(1) compared genocide to homocide, stating that ‘[g]enocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings.’ See also Mundorff, HarvardILJ 50 (2009), 93: ‘The Genocide Convention treats groups not as mere collections of individuals sharing particular traits, but as entities whose existence hangs on the continued function of their constituent parts.’ 333 UN Doc. E/AC.25/SR.414 (Mr. Ondonneau, France). 334 Kreß, IntCrimLRev 6 (2006), 461, 481; Satzger, Int’l and Eur. Crim. Law, § 14 mn. 21 (252); for a different opinion, see: Gropengießer, in: Eser/Kreicker, Nationale Strafverfolgung, 103. 335 Satzger, Int’l and Eur. Crim. Law, § 14 mn. 21 (253). 336 ICJ, Oil Co. case, ICJ Reports 1952, 105; Amann, IntCrimLRev 2 (2002), 138–9. 337 Article II (3) Ad Hoc Committee Draft (UN Doc. E/794): ‘inflicting on members of the group measures or conditions of life aimed at causing their deaths; ...’. Emphasis added. 338 UN Doc. A/C.6/233 & Corr. 1: ‘... The deliberate creation of conditions of life for such groups as is aimed at their physical destruction in whole or in part.’ Emphasis added. 339 UN Doc. A/C.6/SR.81, 181 (Mr. Kaeckenbeeck, Belgium). 340 UN Doc. A/C.6/209: ‘inflicting on members of the group measures or conditions of life likely to cause death, disease or weakening of such members generally.’ 341 UN Doc. A/C.6/222: ‘The deliberate creation of conditions of life for such groups as is intended and likely to cause their physical destruction in whole or in part.’ Emphasis added. 332

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after the 81st meeting, the Belgian representative, Mr. Kaeckenbeeck, convinced the Soviet delegation to accept the present wording, wording which the United Kingdom also deemed ‘entirely satisfactory.’342 This suggests that the final result was largely held to reflect the combined approach that had been advocated by the United Kingdom and thus implies an objective element. The exact material content of ‘calculated to bring about’ is a matter of 76 controversy. Invoking a discussion paper from the Preparatory Commission for the ICC, Schabas construes ‘calculated’ as indicating that ‘the imposition of conditions must be the principal mechanism used to destroy the group, rather than some form of ill-treatment that accompanies or is incidental to the crime.’343 However, this approach seems flawed insofar as it could render paragraph (c) inapplicable in cases where the perpetrators resort to more than one method to carry out their genocidal intent. For instance, in a set of concentration camps of the Auschwitz type where gas-chambers are employed as the principle mechanism of destruction, but forced labour is also used as a secondary means of extermination, the latter method would not be punishable under paragraph (c). In other words: A perpetrator would fail to fulfil the requirements of the offence in paragraph (c) solely because he committed an even greater wrong through concurrently implementing a more efficient means of physical extermination.344 A preferable view construes ‘calculated’ to mean ‘capable’ of bringing about 77 destruction of the group.345 The exact meaning of the term requires refinement though, as ‘capable’ may either be used to denote possibility346 or – more restrictively – the probability of the chosen means to entail the full or partial destruction of the group. International jurisprudence indicates some sympathy for the latter interpretation. For instance, in Kayishema and Ruzindana, the prosecution submitted that ‘calculated to bring about’ applies in situations where the actions in question are likely to cause death.347 The Trial Chamber largely confirmed this position, finding that the act required ‘circumstances which will 342

UN Doc. A/C.6/SR.82, 182 (Mr. Fitzmaurice, United Kingdom). Schabas, Genocide in Int’l Law (2nd ed.), 291, referring to: Preparatory Commission for the International Criminal Court: Discussion Paper Proposed by the Coordinator, Article 6: The crime of Genocide, UN Doc. PCNICC/1999/WGEC/RT.1. 344 A more favourable verdict would be possible if Schabas’ approach could be reinterpreted as a rule pertaining to the ‘concurrence of offences’. Indeed, it seems worth considering if stand-alone weight could be attached to an offence pursuant to paragraph (c) in cases where the imposition of dire conditions of life are accompanied by even worse means of destruction. The correct answer to this essentially depends on the circle of protected values. On the basis of the favourable approach, according to which individual interests fall within the protective scope of the Convention (supra, mn. 4–6) paragraph (c) should only be absorbed by more serious acts of genocide – particularly: ‘killing’ – if the latter were committed against all individuals who had previously already been subjected to destructive conditions of life. Otherwise, the harm suffered by group-members who were not killed afterwards would be unaccounted for in the judgment. Such scenarios of exact congruence of individual victims, however, rarely occur. 345 Kreß, IntCrimLRev 6 (2006), 461, 481; Satzger, Int’l and Eur. Crim. Law, § 14 Rn. 21 (252–3). This view was also adopted by the German legislator in § 6 (1) 3. VStGB: ‘... die Gruppe unter Lebensbedingungen stellt, die geeignet sind, ihre ko¨rperliche Zersto¨rung ganz oder teilweise herbeizufu¨hren.’ Emphasis added. 346 Satzger (Int’l and Eur. Crim. Law, § 14 Rn. 21 (252–3) advocates this alternative: ‘[The individual act] must be suitable in principle for destroying the group.’ 347 ICTR Kayishema and Ruzindana, TC, 21 May 1999, para. 114. 343

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Article II 77–79 lead to a slow death.348 Subsequent jurisprudence has further bolstered this interpretation.349 Nevertheless, two aspects would seem to weigh in favour of the less restrictive approach: First, overly strict requirements as to the capability of the conditions imposed to cause the relevant destruction and probability of the destructive result would draw a line between paragraph (c) and the other four types of genocidal acts which do not demand the specific capability of bringing about the intended destruction of the group. The ensuing disparity of the character of the offences would hardly be consistent with the position of paragraph (c) in the provision. Second, it should be taken into account that during the drafting the wording ‘likely to cause’, proposed by Uruguay and the United Kingdom, did not win sufficient support in the Sixth Committee and needed to be attenuated to the present ‘calculated to bring about’. 78 According to the present view, ‘physical destruction of a group’ means causing the death of the persons who make up the group, in whole or in part. This is primarily suggested by the wording of the provision. As outlined above, the physis of a group is congruent with the physical/bodily conditions of the whole of its human members,350 while ‘destruction’ is ordinarily understood to mean damaging something to the point that it no longer exists.351 The ‘physical destruction’ of group-members thus means causing lethal damage to their bodies, and the ‘physical destruction of a group’ (in whole or in part) means killing its members to the point that the group (in whole or in part) no longer exists.352 This position finds some support in the travaux pre´paratoires. The Ad Hoc Committee’s draft version explicitly featured the death of group members as the required goal of the perpetrator353 until the present version was forged on the basis of the aforementioned Soviet amendment,354 through which the ‘destruction of the group’-element was included in the provision. The protocols of the Sixth Committee do not show any discussion in relation to this part of the amendment and hence indicate that none of the delegates felt that the original meaning had been altered. 79 Some authors propose a wide interpretation of the term, holding the view that ‘physical destruction’ may well be deemed to embrace the destruction of social ties within the group causing its social ‘body’ to disintegrate.355 Others have strongly rejected this approach as being contrary to the term’s ordinary meaning and, more importantly, as rendering the addendum ‘physical’ superfluous within the definition 348

ICTR Kayishema and Ruzindana, TC, 21 May 1999, para. 115. ICTY Karadzˇic´, TC, 28 June 2012, 28767: ’[I]n determining whether conditions of life imposed on the targeted group were calculated to bring about its physical destruction, the Chamber has to focus on the objective probability of these conditions leading to the physical destruction ....’ Similarly: ICTY Karadzˇic´, AC, 11 July 2013, para. 49: ’conditions of life that would bring about their physical destruction’. Emphasis added. 350 Supra, mn. 2. 351 Similarly: Oxford English Dictionary, 477 (‘destruction’). 352 There are two potential points where a group ceases to exist: The ultimate point is reached when the total number of remaining members falls below the required minimum (see: supra, mn. 30). Even before, however, the killing of members can bring about the extinction of a group, provided that the physical elimination of members so damages the social bonds between the remaining persons, that the minimum social or cultural requirements of national, ethnical, racial or religious groups can no longer be established. 353 Supra, mn. 16 354 Supra, mn. 16. 355 Triffterer, in: Triffterer/Rosbaud/Hinterhofer, StGB, § 321, mn. 69. 349

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of the crime.356 From the present perspective, lengthy discussion of these opinions would not prove fruitful, as the view proposed herein paves the way for the assimilation of both positions. Proceeding from the assumption that the physical destruction of a group (in whole or in part) consists of the killing of members of the group to the point that the group (in whole or in part) no longer exists, two conceivable moments can be identified when a group can be said to have been destroyed: The ultimate point could be reached when the total number of remaining group-members falls below the required minimum to make up a group as such.357 Alternatively, even before that point, the physical elimination of members may so damage the social bonds between the remaining persons that the minimum social or cultural requirements of national, ethnical, racial or religious groups can no longer be fulfilled. In both instances, the destruction of the group is effectuated by (deadly) physical means and can thus be labelled ‘physical destruction’, even if in the second instance the result is mediated by the destruction of social bonds. This interpretation duly respects the wording ‘physical’, as well as the fact that the existence of groups is essentially predicated upon the social ties between their members. A further approach suggests slightly broadening the definition of ‘physical destruc- 80 tion’ so as to encompass not only the causing of death but also the infliction of serious bodily or mental harm.358 This, it is argued, would embrace the destructive results of the two preceding prohibited acts and thus serve as a point of reference for the interpretation of the term ‘physical’ within the meaning of the third prohibited act, thus furthering the internal coherence of all acts under Article II.359 However, this view seemingly disregards the fact that the equivalent result of ‘causing serious bodily or mental harm’ within paragraph (c) does not consist in the physical destruction of the group, but in the establishment of certain conditions of life. It also fails to take into account the fact that, during the discussions of the Sixth Committee, a very similar proposal by Uruguay360 was clearly rejected by a vote of 21 to 6, with 9 abstentions.361 The striking openness of the term ‘inflicting conditions of life’ was deliberately 81 chosen at the instigation of the Soviet delegation in order to cover forms of genocide not explicitly foreseen at the time of the drafting.362 In a general manner, such acts can be negatively defined as all fatal measures which do not immediately lead to the death of members.363 According to the Ad Hoc Tribunals, this includes the deprivation of resources indispensible for survival, such as food, medication, proper housing, clothing and hygiene, as well as excessive work or physical exertion.364 The ICC-Elements of Crimes additionally makes mention of ‘systematic 356

Kreß, MK, § 6 VStGB, mn. 55. See: supra, mn. 30. 358 Kreß, IntCrimLRev 6 (2006), 461, 482. 359 Kreß, IntCrimLRev 6 (2006), 461, 482. 360 UN Doc. A/C.6/209. Uruguay had proposed to replace the words ‘aimed at causing their deaths’ by the words ‘likely to cause death, disease or a weakening of such members generally’. 361 UN Doc. A/C.6/SR.81, 180. 362 UN Doc. A/C.6/SR.81, 173 (Mr. Morozov, Soviet Union). 363 ICTR Kayishema and Ruzindana, TC, 21 May 1999, para. 116. Similarly: ICTY Brd-anin, TC, 1 September 2004, para. 691: ‘methods of destruction apart from direct killings’. 364 ICTR Akayesu, TC, 2 September 1998, paras 505–6; ICTR Rutaganda, AC, 26 May 2003, para. 50; ICTR Kayishema and Ruzindana, TC, 31 May 1999, paras 115–6; ICTY Stakic´, TC, 31 July 2003, para. 517; ICTY Brd-anin, TC, 1 September 2004, para. 691. 357

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Article II 81–83 expulsion from homes’365 which shall be addressed in the following under ‘ethnic cleansing’.366 In Kayishema and Ruzindana, ‘rape’ was also considered as a potential act under paragraph (c),367 although as a usually non-lethal, non-permanent and individual-oriented mean it stands out in this context. In fact, as measured by the requirements outlined above, its potential scope of application is extremely narrow and limited to situations where, for instance, rape is committed on such a large scale as to drive a substantial part of the group to commit suicide; or so that contagious deadly diseases are transmitted to a substantial proportion of the group.368 82 Although the ordinary meanings of ‘causing’ and ‘inflicting’ may be broadly the same,369 the divergent use of the two terms in paragraphs (b) and (c) suggests divergent connotations for the purposes of the Convention. The word ‘inflicting’ can be traced back to a Belgian amendment proposing its insertion, as it was felt that criminal responsibility could only be established in cases where measures or conditions of life had been actually imposed (‘re´ellement impose´s’) upon a group.370 The specific nuances of ‘inflicting’ can thus be concretized as requiring that the measures imposed must have started to take actual effect on the physical conditions of the group-members. Against this backdrop the Brd-anin Trial-Chamber judgment seems unconvincing, as it lays out that ‘denial of the right to medical services’ would complete the crime of genocide according to paragraph (c).371 d. Imposing measures intended to prevent births within the group 83

Paragraph (d) addresses the ‘biological’ variant of genocide, covering measures directed against the capacity of group-members to procreate. These measures can be divided into two different categories: Methods devised to destroy the reproductive capacity of a group by physical means, and the setting up of insurmountable psychological obstacles to having children.372 Among physical measures, the following can be named: sexual mutilation, the practice of sterilization, involuntary birth control and the separation of sexes.373 Additionally, forced pregnancy (i. e. forced impregnation of the victim followed by her detainment beyond the point were the pregnancy can be terminated374) may be classified as a physical means of preventing births within a group, as during the time of pregnancy women are physically unable 365 ICC-Elements of Crimes, Article 6 lit. (c), fn. 4: ‘The term ‘conditions of life’ may include, but is not necessarily restricted to, deliberate deprivation of resources indispensable for survival, such as food or medical services, or systematic expulsion from homes.’ 366 Infra, mn. 95. 367 ICTR Kayishema and Ruzindana, TC, 31 May 1999, para. 116; Similarly: Bassiouni/McCormick, Sexual Violence, 32–3. 368 According to Takai (TempIntlCLJ 25 (2011), 401) and Sharlach (NPolS 22 (2000) 99) indications exist that the transmission of the human immunodeficiency virus (HIV) by means of rape was indeed applied during the genocide in Rwanda in 1994 as a slow-death-method. 369 Oxford English Dictionary, 896 (‘inflict’). 370 UN Doc. A/C.6/SR.76, 176 (Mr. Kaeckenbeeck, Belgium). 371 Emphasis added. 372 ICTR Akayesu, TC, 2 September 1998, 508: ‘[M]easures intended to prevent births within the group may be physical, but can also be mental.’ ICTY Tolimir, TC, 12 December 2012, para. 743. 373 ICTR Akayesu, TC, 2 September 1998, 507 (employing ‘forced birth control’ instead of ‘involuntary’ birth control. ICTR Kayishema and Ruzindana, TC, 21. May 1999, para. 117. 374 Takai, TempIntlCLJ 25 (2011), 403; Engle, AJIL 99 (2005), 792.

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to procreate with members of their own group.375 As regards psychological measures, two types can be distinguished: First, a mental obstacle can be created by making use of deep-rooted social rules and conventions, for instance the prohibition of marriage within societies where extramarital procreation is considered shameful,376 or the raping of women who are consequently regarded as untouchable within the group they belong to.377 Second, measures devised to traumatize a victim to the point that they lose the will, desire or psychological ability to procreate,378 such as systematic rape. Pursuant to the wording of the provision, these measures must be ‘imposed’ 84 upon the victims. It is debatable whether this term bears connotations which reach beyond mere causation. The ILC took the view that ‘[t]he phrase ‘imposing measures’ is used in this subparagraph to indicate the necessity of an element of coercion. Therefore, this provision would not apply to voluntary birth control programmes sponsored by a state as a matter of social policy.’379 This stance is supported by the Chinese authentic version which involves an element of compul(qia´ngzhì).380 As opposed to this, the authentic sion, employing the term French, Spanish and Russian versions of the Convention do not offer the slightest indication for such an interpretation. Moreover, an element of force is explicitly contemplated within paragraph (e), thereby indicating e contrario that measures under paragraph (d) do not necessarily imply force. From the perspective of effet utile, it may also be worth considering that the clandestine administration of contraceptive agents to protected groups by deceptive rather than forcible means is not an unthinkable scenario and should hence remain within the Convention’s purview. And finally, the ILC’s underlying concern that voluntary governmental birth control programs could risk being considered genocidal can easily be dispersed, since such measures can be ruled out through the failure to satisfy the requirement of ‘intent to destroy’.381 In sum, therefore, it would seem preferable not to exclude voluntary measures from the scope of paragraph (e). Occasionally, it has been held that the seeming mens rea-element ‘intended to’ 85 should be construed as requiring that the imposed measures be objectively capable of preventing births.382 However, certain aspects suggest otherwise. Besides the fact that the ordinary meaning of the wording of the provision does not allow for objective elements, it should also be recalled that a hybrid element, composed of a 375 Takai, TempIntlCLJ 25 (2011), 404; Sharlach, NPolS 22 (2000), 93. In Akayesu (2 September 1998, para. 507) the ICTR Trial Chamber held that ‘[i]n patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, whith the intent to have her give birth to a child who will consequently not belong to its mother’s group.’ Raising the number of children deemed to belong the perpetrator’s kin, even if effectuated by abusing and instrumentalizing women of another group, however, cannot as such be subsumend under the wording of Article II lit. (d). For a different opinion see: Kittichaisaree, International Criminal Law, 81. 376 ICTR Akayesu, TC, 2. September 1998, 507, generally speaking of ‘prohibition of marriages’. 377 Satzger, Int’l and Eur. Crim. Law, § 14 mn. 22 (253). 378 Short, MichJRaceL 8 (2008), 511. 379 ILC Draft (1996) Commentary, 46. See also ICTR Akayesu, TC, 2 September 1998, para. 507, ‘forced birth control’. 380 ‘Qia ´ ngzhì’: to enforce; enforcement; forcibly. 381 See: Schabas, Genocide in Int’l Law (2nd ed.), 293–4. 382 Kreß, IntCrimLRev 6 (2006), 461, 483.

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Article II 85–88 subjective intent-requirement and an objective capacity-requirement, is in fact recognized by the Convention in the guise of the ‘calculated-to-bring-about’element within Article II lit. (c).383 Against this backdrop, such an approach would amount to ascribing the same meaning to very different terms, which would run afoul of generally accepted standards of interpretation. A further indication can be drawn from the ICC-Elements of Crimes, referring to Article 6 lit. (d) ICC-Statute, which employs the term ‘intended to’ to both genocidal intent and the intent to prevent births.384 This also draws the conclusion that ‘intended to’ under paragraph (d) in fact depicts a purely subjective element. 86 The result aimed at must consist of the ‘prevention of births within the group’. For the same reasons as outlined above,385 the plural form ‘births’ is to be taken literally and requires the intention of preventing at least two births within the group. e. Forcibly transferring children of the group to another group The circumscribed act in this subparagraph constitutes an umbrella offence, spanning two kinds of mechanisms of destruction: biological and cultural genocide. In regards to the former, the transfer of children may be considered a twofold encroachment upon the group’s reproductive capacity, as the effects of the postnatal abduction of children are practically identical to the termination of pregnancies, and the separation of pubescent children from their group may serve to prevent pregnancies within the group. Secondly, the prevention of social interaction between children and other group-members is a means of undermining the social persistence of a group that can be considered to be a form of cultural genocide. In light of the fact that the Sixth Committee, after lengthy discussion, resolved to exclude acts pertaining to ‘cultural genocide’ from the Convention, one could be inclined to reduce the scope of paragraph (e) to scenarios of biological genocide. However, this argumentation overlooks the fact that the Sixth Committee did not reject the rationale of cultural genocide as such, but merely excluded the acts contemplated by Article III of the Ad Hoc Committee Draft Convention.386 This is also illustrated by the inclusion of causing mental harm under paragraph (b), which does not target the physical state of a group, but rather its members’ social capacity to interact and hence constitutes a means of cultural genocide in the broader sense. 88 As to the notion of ‘children’, reference can be made to Article 1 of the UN Convention on the Rights of the Child, according to which ‘child’ means every human being below the age of eighteen years. The ICC-Elements of Crimes repeats this definition, indicating a broad international consensus of its applicability for the purposes of genocide.387 The wording ‘human being’ suggests that foetuses should not be considered to be covered. Thus, the forcible transfer of pregnant women does not constitute a crime under paragraph (e). With regard to the upper age limit, Schabas advocates a more restrictive approach, proposing that the age-requirement 87

383

Supra, mn. 75. ICC Elements of Crime, Article 6 lit. (d), Element No. ‘3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such. 4. The measures imposed were intended to prevent births within that group.’ 385 Supra, mns 61-65. 386 Supra, mn. 12. 387 ICC-Elements of Crimes, Article 6 lit. (e), Element No. 5. 384

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should be measured according to the potential loss of cultural identity. Evidently, children at a very receptive age will readily adopt the language, culture and religion of their new environment, while older children are far less likely to lose their cultural identity through such transfer.388 Although this view allows for flexible riskassessment as to the cultural integrity of a group, its criteria are highly speculative and lacking in certainty. Moreover, it disregards the biological dimension of paragraph (e), i. e. the fact that children, as future parents, constitute the ‘reproductive reserve’ of a group, irrespective of their status of infants or near-adults.389 For the same reasons outlined above390 the plural form ‘children’ is to be taken 89 literally and requires the forcible transfer of at least two children from one group to another. The words ‘children of the group’ clarify that prior to being transferred, the 90 children must have belonged to the targeted group. This seeming truism gains relevance in the context of so-called ‘procreative rape’, i. e. the forced impregnation of women of the targeted group, with the intent of ‘diluting’ this group, within patriarchal societies where membership of a group is determined by the identity of the father.391 In the Bosnian Genocide case, the Applicant argued that children born as a result of these ‘forced pregnancies’ would not be considered to be part of the protected group and opined that the intent of the perpetrators was to transfer the unborn children to the group of Bosnian Serbs.392 However, this view is unconvincing irrespective of the approach chosen to determine group-membership. Pursuant to the approach393 proposed here, whether or not a child belongs to a protected group must be assessed objectively and without regard to the group’s self-perception. Accordingly, children born of Bosnian Muslim women and brought up amidst their mothers’ ethnic group should be deemed as belonging to this group, so that the required transfer from one group to another cannot be established.394 On the other hand, if, on the basis of the competing objective-subjective approach, the children were to be regarded as the offspring of the perpetrators, they would not qualify as ‘children of the [protected] group’, and the requirements of the offence contained in paragraph (e) would also not be fulfilled. At the outset, ‘transferring to another group’ requires the geographical and 91 communicative separation of the children from the rest of their group. Although the word ‘transfer’ may suggest otherwise, the separation does not necessarily demand that the children be relocated, but can also be fulfilled where the children are left in one place and the rest of the group is removed.395 The separation requires neither great distance nor total loss of contact. For instance, separating children within a detention camp would suffice, even if clandestine channels of communication allowed for some contact between the children and the rest of the group. 388

Schabas, Genocide in Int’l Law (2nd ed.), 203. See also: Mundorff, HarvardILJ 50 (2009), 92. 390 Supra, mns 61-65. 391 ICJ, Bosnian Genocide case, ICJ Reports 2007, 192 (para. 362); Short, MichJRaceL 8 (2003), 512. 392 ICJ, Bosnian Genocide case, ICJ Reports 2007, 192 (para. 362); similarly: Takai, TempIntlCLJ 25 (2011), 405. 393 Supra, mns 41-46. 394 The ICJ apparently took the same position in the Bosnian Genocide case, ICJ Reports 2007, 193 (paras 366–7). 395 Kreß, IntCrimLRev 6 (2006), 484; Mundorff, HarvardILJ 50 (2009), 91. 389

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Article II 92, 93 In addition to separating children from their original group, a certain connection between the children and the receptive group is needed, as indicated by the words ‘to another group’. Undoubtedly, one requirement of this connection is that the children are in the other group’s effective control.396 Further, in light of the fact that paragraph (e) also touches on the sphere of cultural genocide, it may not seem farfetched to require a certain degree of acculturation of the children within the other group. This finds some support in the Secretariat Draft Commentary, which had felt that ‘[t]he separation of children from their parents results in forcing upon the former at an impressionable and receptive age a culture and mentality different from their parents’. This process tends to bring about the disappearance of the group as a cultural unit in a relatively short time.’397 However, more convincing aspects factor against such an additional requirement. In the first place, the usage of ‘to another group’ instead of ‘into’ should be considered, as the wording chosen marks motion in the direction of the other group rather than expressing a form of embedding therein. Secondly, requiring cultural assimilation of the children would run counter to the pre-conventional conceptions of cultural genocide. All of these conceptions display the awareness that the phenomenon of (cultural) genocide features a two-part structure. In 1919, the Commission of Responsibility of the Authors of the War and on Enforcements of Penalties held that the German Empire and her allies had committed acts of ‘denationalization’ with the purpose of later ‘germanizing’ the respective territories.398 Similarly, in 1944 Lemkin discerned two phases of genocide: the destruction of the national pattern of the targeted group, and, following up, the imposition of the national pattern of the oppressor.399 By the same token, before the Nuremberg Military Tribunal, the French prosecutor Champetier de Ribes defined genocide as ‘the extermination of the races or people at whose expense they [the Nazis] intended to conquer the living space they held necessary for the so-called Germanic race.’400 The proponents of these early conceptions of genocide consistently held that punishment should, in all instances, be attached to the first act of destroying the cultural heritage of groups, not the second act of re-acculturation. Against this backdrop, it would be inappropriate to require the transferred children to have been assimilated into the culture of the receptive group. 93 A further controversial issue is whether the transfer of children needs to be permanent in order to meet the requirements of this subparagraph.401 During discussions at the Sixth Committee, the question was brought up several times402 but was ultimately left unanswered. According to the view proposed here, the better case can be made against such a requirement of permanence. The word ‘transfer’ marks a temporary activity rather than a lasting consequence, which is further 92

396

Mundorff, HarvardILJ 50 (2009), 91. Secretariat Draft Commentary (UN Doc. E/447), 27. 398 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, AJIL 14 (1920), 114 (sub 12). 399 Lemkin, Axis Rule, 79. 400 IMT, Trial of the Major War Criminals, volume XIX, 562. 401 Werle, Int’l Criminal Law (2nd ed.), mn. 737: ’... permanent transfer done with the specific intent of destroying the group’s existence.’ For a different view see: Mundorff, HarvardILJ 50 (2009) 91. 402 Supra, mn. 18. 397

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emphasized by the use of the gerund form ‘transferring’. Moreover, doubts as to whether a short-term abduction of children could constitute a suitable means to destroy the group, in whole or in part, can be adequately dealt with on the level of genocidal intent.403 It may be noted that forgoing a duration-requirement carries a significant consequence: On this basis, the killing of children of a protected group will, in many cases, not only be punishable under paragraph (a), but also qualify as forcibly transferring children under paragraph (e), as the required separation and establishment of effective control (for instance, by rounding up juvenile victims in a certain place) will oftentimes precede the act of killing. The term ‘forcibly’ not only covers the use of coercion and violence, but also 94 extends to the threat of using such means.404 The use of deceptive means cannot be subsumed under the term. The use or threat of force need only be a concomitant of transferring children, not a causal factor. This is supported by the fact that in most scenarios of forcible transfer, an element of deception will also be present, such as the assertion that the children are being evacuated for humanitarian reasons or that they will be immediately returned to their parents. In cases like these, it would be impossible to establish before a court whether or not the deception, hypothetically, would have been sufficient to effectuate the transfer of children. This would invariably lead to unwarranted acquittals and practically undermine the protective goal of paragraph (e).405 f. ‘Ethnic cleansing’ The practice of so-called ‘ethnic cleansing’ – which consists of ‘rendering an area 95 ethnically homogenous by using force or intimidation to remove persons of given groups from the area’406 – is a frequent phenomenon in macro-criminal scenarios,407 and both the Sixth Committee408 and later the ILC409 deliberated as to whether it should be considered as a stand-alone act of genocide. Eventually plans to include it were abandoned, as it was rightly concluded that the punishable

403

See: Mundorff, HarvardILJ 50 (2009), 91. This is clearly set out in a footnote to Element 1 of the ICC-Elements of Crimes, Article 6 lit. (e): ‘The term ‘forcibly’ is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment.’ See also: Satzger, Int’l and Eur. Crim. Law, § 14 mn. 23 (253); Kittichaisaree, International Criminal Law, 82; Kreß, IntCrimLRev 6 (2006), 461, 484; ICTR Akayesu, TC, 2 September 1998, para. 509 405 The ICTR Trial Chamber in Akayesu (2 September 1998, para. 509) possibly spoke in favour of a causal element, holding that ‘the objective [of Article II lit. (e)] is not only to sanction a direct act of forcible physical transfer, but also to sanction acts of threats or trauma which would lead to the forcible transfer of children from one group to another.’ Emphasis added. 406 ICJ, Bosnian Genocide case, ICJ Reports 2007, 122–3 (para. 190); ICTY Jelisic ´, TC, 2 August 2001, paras 562, 578; ICC Al Bashir, PTC, 4 March 2009, para. 144. 407 Naimark, Fires of Hatred, passim; Bell-Fialkoff, Foreign Affaires 72 (1993), 110–21; Jackson Preece, HRQ 20 (1998), 818: ‘[F]orcibly moving populations defined by ethnicity ... has been an instrument of nation-state creation for as long as homogeneous nation-states have been the ideal form of political organization.’ 408 Supra, mn. 19. 409 ILC Yearbook 1989, Vol. I, 2100th meeting, 30, paras 32–4; Yearbook 1991, Vol. I, 2239th meeting, 215, para. 21; ibid., 2251st meeting, 293, paras 15–7. 404

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Article II 95–97 aspects of the forcible expulsion of protected groups were already sufficiently embraced by the ‘slow-death-methods’ under paragraph (c).410 International jurisprudence has largely adopted this position,411 as well as adding acts defined by paragraph (b) as a further candidate applicable in situations of ethnic cleansing.412 To date, such jurisprudence has gained a certain degree of uniformity. Hence, while the forcible expulsion of groups is not punishable as such, its effect on the members of the targeted group may well give rise to criminal responsibility pursuant to Article II of the Convention.

II. Mental elements 96 In general, the crime of genocide requires two separate mental elements, namely, the intent corresponding to the culprit’s individual conduct and factual circumstances envisaged in the chapeau of Article II which may be referred to as ‘general intent’, and additionally, the ‘intent to destroy’, which goes beyond the actus reus and may hence be termed ‘specific’413 or ‘ulterior intent’.414 It is this latter ‘transcending internal tendency’415 of genocide that constitutes its character as a goal-oriented crime.416 Finally, in addition to the general intent and the ulterior intent to destroy, paragraph (d) contains a further specific intent element in that the perpetrator must have ‘intended to’ prevent births within the targeted group. 1. Mental elements of the individual act 97

Like all crimes recognized in international criminal law, the objective elements of the crime of genocide need to be mirrored by a subjective element of general intent. Regarding Article II, the precise content of this subjective element can only be ascertained on the basis of the subsequent development of international criminal law, since the creators of the Convention did not address the issue in detail. As it

410 ILC Yearbook 1991, Vol. I, 2239th meeting, 215, para. 9; Report of the Commission to the General Assembly on the Work of Its Forty-First Session, UN Doc. A/CN.4/SER.A/1989/Add.1 (Part 2), 102, para. 5; Report of the Commission to the General Assembly on the Work of Its FortyEighth Session, UN Doc. A/51/10, 46, 92. 411 ICJ, Bosnian Genocide case, ICJ Reports 2007, 92 (para. 119); ICTY Stakic ´, TC, 31 July 2003, paras 517, 519 (‘The expulsion of a group or part of a group does not in itself suffice for genocide.’); ICTY Tolimir, TC, 12 December 2012, para. 765; ICTR Akayesu, TC, 2 September 1998, 506; ICTY Krstic´, TC, 2 August 2001, para. 508, citing the Eichmann-Trial (Jerusalem District Court, 12 December 1961, ILR 36 (1968), 340). 412 ICTY Krstic ´, TC, 2 August 2001, para. 513; ICTY Blagojevic´ and Jokic´, TC, 17 January 2005, para. 646, 650. 413 ICTR Akayesu, TC, 2 September 1998, para. 498; ICTR Seromba, TC, 13 December 2006, paras 175, 319. 414 The preferable notion ‘ulterior intent’ is proposed by Ambos (IRRC 91 (2009), 833, 835 with further references). Similarly: ICTY Stakic´, TC, 31 July 2003, para. 520 (‘’surplus’ of intent’). International jurisprudence features a wealth of different terms, e. g.: ‘genocidal intent’ (ICTR Kayeshema and Ruzindana, 21 May 1999, para. 91), ‘exterminatory intent’ (ICTY Jelisic´, TC, 14 December 1999, para. 83), ‘specific intention’ (ICTR Akayesu, TC, 2 September 1998, para. 498); ‘dolus specialis’ (ICTR Kajelijeli, TC, 1 December 2003, para. 803). 415 Ambos, IRRC 91 (2009), 833, 835, translating the German term ‘u ¨ berschießende Innentendenz’. 416 Gil Gil, ZStW 111 (2000), 394–5; Ambos, IRRC 91 (2009), 835.

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reflects a far-reaching consensus of states, Article 30 ICC-Statute417 is paramount in determining the content of the subjective requirements. When compared with the majority of national criminal law systems, the standard contained in Article 30 ICC-Statute is quite high. As regards criminal conduct, Article 30 para. 2 lit. (a) ICC-Statute demands that the person means to engage in the relevant conduct. In relation to circumstances, Article 30 para. 3 ICC-Statute requires an ‘awareness that a circumstance exists’. Finally, with regard to consequences, Article 30 para. 2 lit. (b) of the Statute requires that a person either means to cause the consequence or is aware that a consequence will occur in the ordinary course of events,418 the latter demanding a certain degree of probability which would not be met if, in the perpetrator’s eyes, the risk of such a consequence is low.419 This last provision gives rise to some ambiguity: Does Article 30 ICC-Statute additionally require such a high degree of awareness in cases where the perpetrator means to bring about a consequence? A combined look at the first and the third paragraph of Article 30 ICC-Statute indeed seems to suggest so, providing that (all) material elements of a crime need to be committed with intent and knowledge, and, as regards consequences, knowledge means awareness that a consequence will occur. On the other hand, this interpretation would appear to render the first alternative of Article 30 para. 2 ICC-Statute (‘means to’) superfluous, since the second alternative (‘is aware’) would then always be fulfilled. In order to avoid this inconsistency, one might consider entirely forgoing an additional knowledge-requirement whenever the perpetrator means to cause a result. However, pending future clarification of this issue by the ICC, it would seem preferable to cut a path between the two interpretations by retaining a knowledge-requirement in such cases, but reducing it to a standard below awareness of probability. In order to pinpoint that standard, recourse can be taken to the cognitive requirements of the concepts of dolus eventualis and recklessness, which feature dominantly in national criminal law systems and were frequently drawn upon in the early jurisprudence of the ad hoc tribunals.420 According to these concepts, the mere awareness of the risk that a particular consequence may occur in the ordinary course of events is sufficient.421

417 Article 30 ICC Statute reads: ‘Mental element 1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. 2. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. 3. For the purposes of this article, ‘knowledge’ means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. ‘Know’ and ‘knowingly’ shall be construed accordingly.’ 418 In regard of a consequence, Article 30 para. 2 ICC-Statute stipulates that either meaning to cause that consequence or awareness that it will occur is required. This suggests that whenever a person means to cause a consequence, a lower degree of awareness is sufficient, since otherwise, the ‘means to’-alternative would be dispensible. 419 ICC Lubanga, TC, 14 March 2012, para. 1012. See also infra, fn. 458. 420 For an account of jurisprudence drawing upon these concepts, see: Werle, Int’l Criminal Law (1st ed.), mns 330–6. 421 Werle, Int’l Criminal Law (2nd ed.), mn. 409.

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Article II 98–100 The special weight of Article 30 ICC-Statute for the present purpose of assessing the mental element of the crime of genocide is also stressed by the fact that the ad hoc tribunals have made distinct moves towards the Article 30 standard in their more recent judgments. In particular they have held that, in terms of consequences, being aware of the ‘mere possibility’ is not sufficient,422 and that awareness of a ‘substantial likelihood’423 is required instead. In light of this development, the expectancy is well-founded that the mens rea requirements as enshrined in Article 30 shall govern future practice in international criminal law, and hence should also be drawn upon to determine the subjective general intent element in the crime of genocide.424 Exceptions need only be made where the wording of the genocidal acts in the Convention so requires. 99 Relative to the acts under Article II lit. (a) and (b) – ‘killing’ and ‘causing serious bodily or mental harm’, these requirements apply without exception.425 100 As regards the so-called ‘slow-death-measures’ under Article II lit. (c), the first question arises as to whether the term ‘deliberately’ has a separate meaning or rather makes reference to the general intent requirement.426 From the perspective of treaty interpretation, it is preferable that a proper meaning should indeed be ascribed to the term. Beyond the fact that complete dispensability of a term within a legal definition should never be lightly assumed, the genesis of this norm also supports this view. Responding to a remark that this element was already included in the first part of Article II and would therefore be redundant, the Belgian representative in the Sixth Committee (Mr. Kaeckenbeeck) pointed out that other than in the chapeau of Article II, in this context ‘deliberate’ did not bear upon the destruction the group, but referred to a different result, namely, the creation of conditions of life.427 The episode reveals that ‘deliberately’ in paragraph (c) was apparently deemed to have the same meaning as ‘with intent’ in the chapeau, which is: ‘purposefully’ or ‘aiming at’.428 Against this backdrop, the term ‘deliberately’ should be construed as requiring the infliction of harmful conditions to be 98

422 ICTY Strugar, TC, 31 January 2005, para. 235 (in regard of murder as a violation of the laws or customs of war). 423 ICTY Blasˇkic ´ , AC, 29 July 2004, paras 41–2. 424 See: Kreß, MK, § 6 VStGB, mn. 70. Historically speaking, one may assume that during the drafting the underlying tacit understanding of general intent requirements was greatly influenced by the broadly lower standards of the delegates’ domestic criminal law systems. Ultimately, however, such assumptions remain too vague to be included into the interpretation of the Convention. 425 For a different view, see: Werle (Int’l Criminal Law (2nd ed.), mn. 751), pointing out that the ad hoc tribunals’ jurisprudence regarding ‘wilful killing’ (Article 2 lit. (a) ICTY Statute) and ‘murder’ (Article 5 lit. (a) ICTY Statute, Article 3 lit. (a) ICTR Statute) in terms of crimes against humanity and war crimes consistently applied a less restrictive standard of intent (‘reckless disregard of human life’). This well settled standard, it is argued, should also be applied to the comparable crimes under Article 6 lit. (a)/(b) ICC Statute (identical to Article II lit. (a)/(b)). In light of the fact, however, that unlike crimes against humanity and war crimes, genocide only bestows subsidiary and accessory protection to individuals (see supra, mn. 5), the provisions of Article II lit. (a) and (b) appear too different in nature as to allow for a light transfer of the said jurisprudence. 426 In favour of the latter view: Werle, Int’l Criminal Law (2nd ed.), mn. 750. 427 Supra, mn. 16. 428 Infra, mn. 104. It should be noted that the term ‘deliberate’ varied in meaning in the course of the drafting process. Originally used as denoting ‘aiming at’ or ‘with the goal to’ it was later also referred to in the context of premeditation. At the time of the above-mentioned discussion, however, the Sixth Commission had already resolved to cast aside the concept of premeditation.

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the perpetrator’s (intermediate) goal. In terms of Article 30 para. 2 ICC-Statute, the perpetrator must therefore ‘mean’ to inflict such conditions. Secondly, the words ‘calculated to’ deserve further deliberation. As demonstrated 101 above,429 this element is comprised of both an objective and a subjective component. As regards the latter, the term requires the perpetrator to aim at the physical destruction of the targeted group, in whole or in part.430 Hence, it does not simply reiterate the specific intent as provided in the first part of Article II – which would extend to forms of social destruction of the group431 – but narrows it down to intending the group’s physical extermination. Beyond that, based on the wording, it would not seem far-fetched to assume that the term also implies an element of premeditation. Such an understanding, however, finds no basis in the travaux pre´paratoires, which reveal that the current wording was forged as a compromise formula to conclude a controversy quite unrelated to premediation.432 Moreover, the Sixth Committee clearly took position against the inclusion of premeditation in general.433 As regards the act provided for in Article II lit. (d) – ‘imposing measures 102 intended to prevent births within the group’, the English term ‘intended to’ may be broad enough to extend to forms of mere awareness. However, all other authentic versions do not allow for any interpretation other than ‘with the goal to’ or ‘aiming at’ (French: ‘visant a`’; Spanish: ‘destinada a’; Russian: _O``fWaO\\jT (‘qıˇtú’= to seek, to attempt)). \O (= calculated for, designed for); Chinese: This leads to the conclusion that mere awareness, even to the point of certain foresight, would not be sufficient.434 In relation to ‘forcibly transferring children’, as provided for in Article II lit. (e), 103 the standard outlined above applies. Notably, the ICC-Elements of Crimes proposes the reduction of the mental requirement of the parallel provision, Article 6 lit. (e) ICC-Statute, to mere negligence as far as the age of the transferred persons is concerned.435 However, considering that this is clearly divergent from the authoritative precepts of Article 30 ICC-Statute, and moreover, that liability for negligence forms an extremely rare exception in international criminal law,436 the Elements cannot be followed on this point.

429

Supra, mn. 75. See: ICTY Tolimir, TC, 12 December 2012, para. 740 (‘methods of destruction that ... ultimately seek their physical destruction.’ Emphasis added). 431 Supra, mns 2-3. 432 See particularly: UN Doc. A/C.6/SR.81, 82, 176–83. 433 Supra, mn. 25. 434 The ICTY Trial Chamber in Tolimir (12 December 2012 para. 767) seems to have taken the same position. For a different opinion see Werle, Int’l Criminal Law (2nd ed.), mn. 750. 435 Article 6 lit. (e), Element 6: ‘The perpetrator knew, or should have known, that the person or persons were under the age of 18 years.’ 436 So far, negligence has only found universal acceptance with respect to superior responsibility (see: Article 28 ICC Statute). The extensive form of joint criminal enterprise (JCE III), which employs a similar standard, remains hotly contested (see, for instance: Ambos, Treatise on International Criminal Law, 172–6; Berster, ZIS 9/2010, 538–46). 430

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Article II 104, 105 2. Intent to destroy, in whole or in part, a protected group as such a. Intent to destroy aa. The volitional element Pursuant to the understanding proposed here, ‘intent to destroy’ is composed of both a volitional and a cognitive element. The volitional component requires the (full or partial) destruction of the group to be the perpetrator’s goal. Within international jurisprudence, this so-called ‘purpose-based approach’437 first appeared in the seminal Akayesu-trial-judgment438 of the ICTR and has gained unanimous confirmation in the subsequent case law of the ICTY439 and ICJ.440 In its first commentary on the matter, the ICC-Pre-Trial Chamber in Al-Bashir also expressed support for this view,441 as did the International Commission of Inquiry on Darfur.442 105 Proving the volitional component of genocidal intent is often a laborious task. Like all subjective elements, it cannot be evinced directly but rather must be inferred from facts which, in their entirety, constitute the manifestation of such intent beyond reasonable doubt.443 In this context, reference can be made to the dissenting opinion of Judge Usˇacka in the Al Bashir-case,444 which provides a thorough account of aspects that the finding of genocidal intent can be based on, including discerning 104

437 As opposed to the ‘knowledge-based approach’. See: Kreß, JIntCrimJust 3 (2005), 562, 565– 72; Ambos, IRRC 91 (2009), 833, 839–45. 438 The judgment (ICTR Akayesu, TC, 2 September 1998) is ambiguous. In para. 498 the Chamber defines specific intent as demanding ‘that the perpetrator clearly seeks to produce the act charged. Thus, the specific intent ... of genocide lies in ‘the intent to destroy, in whole or in part, a ... group.’ Para. 520 has a different ring to it: ‘[T]he offender is culpable only when he has ... the clear intent to destroy .... The offender is culpable because he knew or should have known that the act committed would destroy ... a group.’ Other ICTR chambers seemingly adhered to the first proposition, although suggesting a rather unfortunate and tautological definition: ICTR Rutaganda, TC, 6 December 1999, para. 59; ICTR Musema, TC, 27 January 2000, para. 164: ‘The special intent of a crime is the specific intention which, as an element of the crime, requires that the perpetrator clearly intended the result charged.’ 439 ICTY Jelisic ´, TC, 2 August 1999. Although refraining from a clear definition of the intent requirement, the Chamber expressed the view that intent would be present if the accused had ‘harboured the plan to exterminate an entire group’ (para. 100) or had been ‘seeking to destroy a group as such’ (ibid.), whereas random and arbitrary killings would not be sufficient (paras 106, 108). ICTY Kupresˇkic´ et al, TC, 14 January 2000 para. 636 (‘[W]hen persecution escalates to the extreme form of wilful and deliberate acts designed to destroy a group or part of a group ... such persecution amounts to genocide.’ Emphasis added.); ICTY Jelisic´, AC, 5 July 2001, para. 46 (‘[S]pecific intent requires that the perpetrator ... seeks to achieve the destruction ....’ Emphasis added.); ICTY Krstic´, TC, 2 August 2001, para. 571 (‘acts committed with the goal of destroying all or part of the group’. Emphasis in the original.); ICTY Krstic´, AC, 19 April 2004, para. 32 (‘[the perpetrator’s] objective of destroying the targeted part’. Emphasis added.); ICTY Blagojevic´ and Jokic´, 17 January 2005, para. 656; ICTY Brd-anin, TC, 1 September 2004 para. 699, 700. 440 ICJ, Bosnian Genocide case, ICJ Reports 2007, 121–2 (para. 188), citing ICTY Kupresˇkic´ et al., TC, 14 January 2000, para. 636. 441 ICC Al Bashir, PTC, 4 March 2009, para. 139, fn. 154, rejecting the competing ‘knowledgebased approach’. 442 Darfur-Report, para. 491. 443 See, for instance: ICTY Brd-anin, TC, 1 September 2004, para. 970; ICJ, Bosnian Genocide case, ICJ Reports 2007, 122 (para. 189); ICTY Tolimir, TC, 12 December 2012, para. 745. 444 ICC Al Bashir, PTC, 4 March 2009, dissenting opinion Usˇacka, paras 36–55. Please note that the text under fns 445-8 gives a largely verbatim rendition of Judge Usˇacka’s explanation.

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evidence emanating from or relating to the accused,445 evidence relating to others,446 contextual evidence447 and further factors.448 bb. The cognitive element In contrast to the volitional element of genocidal intent, its cognitive component 106 is often overlooked in academic writing and jurisprudence. Of all international legal 445

Various forms of communication are relevant to show the possible formation of intent, including discrete words and utterances by the accused (ICTR Kayishema and Ruzindana, AC, 1 June 2001, para. 148; ICTR Kayishema and Ruzindana, TC, 21 May 1999, paras 93, 542; ICTY Jelisic´, TC, 14 December 1999, para. 75; ICTR Muhimana, TC, 28 April 2005, para. 496; ICTR Gacumbitsi, TC, 17 June 2004, paras 252–3), statements of the accused (ICTR Bagilishema, TC, 7 June 2001, para. 63; ICTR Akayesu, TC, 2 September 1998, para. 728) and evidence tending to show that the accused ordered attacks on the targeted group (ICTR Semanza, TC, 15 May 2003, para. 429; ICTR Kayishema and Ruzindana, TC, 21 May 1999, para. 542; ICTR Rutaganda, TC, 6 December 1999, para. 399; ICTR Gacumbitsi, TC, 17 June 2004, para. 259). 446 The words and deeds of others acting with or at the behest of the accused can also be relevant to support an inference of the formation of intent. (For example, evidence that during attacks led by an accused against the targeted group the attackers were chanting ‘Tuba Tsemba Tsembe’, which means ‘Let’s exterminate them’, a reference to the Tutsi, has been held to support an inference of genocidal intent (ICTR Niyitegeka, TC, 16 May 2003, paras 413 and 419)). 447 Under this rubric, Usˇacka discerns two subcategories: (a) Plans, policies and preparation, and (b) evidence of modus operandi. With respect to the former, Usˇacka notes: Although the existence of a genocidal plan or policy has not been considered a legal element of the crime of genocide under ad hoc tribunal jurisprudence, proof of such a plan or policy has been deemed relevant to the formation of intent (ICTY Jelisic´, AC, 5 July 2001, para. 48; see also ICTR Kayishema and Ruzindana, TC, 21 May 1999, para. 94). A Chamber may infer the existence of such a plan or policy from a variety of indicia. Proof of governmental involvement in attacks (ICTR Kayishema and Ruzindana, TC, 21 May 1999, paras 309–12; ICTY Krstic´, AC, 19 April 2004, para. 35) through the involvement of public officials or soldiers in carrying out the attacks (ICTR Kayishema and Ruzindana, TC, 21 May 1999, para. 536; ICTR Ntyitegeka, TC, 16 May 2003, para. 414; ICTR Kamuhanda, TC, 22 January 2005, para. 644) or through the provision of transportation for the attackers (ICTR Kayishema and Ruzindana, TC, 21 May 1999, para. 536) have been considered relevant in this regard. Additionally, indicia such as (i) the existence of execution lists targeting the protected group; (ii) the dissemination of extremist ideology; and (iii) the screening and selection of victims on the basis of their membership in the protected group may also be relevant to show the formation of intent (ICTR Kayishema and Ruzindana, AC, 1 June 2001, para. 139). Moreover, the existence of a plan or project to create an ethnically homogenous state, along with evidence of an intent to exclude non-members by violence and evidence that the targeted group could not lay claim to any specific territory, has been held to support an inference that the plan contemplates the destruction of the non-member ethnic groups (ICTY Karadzˇic´, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, para. 94). As regards conclusions inferred from modus operandi, Usˇacka states that the general context of the perpetration may also support the inference that the perpetrator had formulated intent. For example, where it is demonstrated that acts of a consistent character have been systematically directed against a protected group, such acts may support the inference that intent has been formulated. Such evidence may include, in particular, evidence of killings perpetrated in a systematic manner (ICTY Krstic´, TC, 2 August 2001, para. 547), evidence tending to show that types of weapons and methods employed by the attackers were consistent across attacks (ICTR Kayishema and Ruzindana, TC, 21 May 1999, para. 537) and evidence of a consistent modus operandi across attacks (ICTR Kayishema and Ruzindana, TC, 21 May 1999, para. 535; ICTY Jelisic´, TC, 14 December 1999, para. 88). 448 Other relevant ‘general context’ factors considered by the ad hoc tribunals trial chambers include, inter alia: whether bodily injuries were extensive, whether property belonging to members of the targeted group was targeted, and whether derogatory language was used by an accused or by others against members of the target group (ICTR Muhimana, TC, 28 April 2005, para. 496; ICTR Akayesu, TC, 2 September 1998, para. 728).

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Article II 106–108 bodies, it appears that only the Darfur Commission has hitherto expressly confirmed its existence, requiring not only the perpetrator’s desire to destroy, but also the knowledge ‘that his acts would destroy, in whole or in part, the group as such.’449 The considerations at hand suggest that this issue deserves far greater attention. 107 Defining genocide as a ‘crime under international law’450 directed ‘against the international community as a whole’451 requires embedding the individual acts under paragraphs (a)–(e) in a macro-criminal context. The definition of genocide does not explicitly demand the offender’s conduct to be linked to a broad-scale genocidal campaign, and consequently, there is no broad consensus as to how to address the issue. The ICTY Appeal Chamber has characterized the offender’s knowledge of participating in an organized or extensive attack against civilians as evidence in relation to establishing the necessary genocidal intent.452 A competing approach suggests amending the definition by adding a material element that requires the act to be committed against the backdrop of a real imperilment of the protected group’s very existence (in whole or in part).453 Although the latter position finds marked support in the ICC-Elements of Crimes,454 and the historical affiliation of genocide to crimes against humanity, its persuasiveness suffers considerably from the fact that Article II does not offer any textual support to sustain such view. Moreover, in methodical terms, confining a norm’s purview by reading in additional elements goes beyond the sphere of interpretation secundum legem and qualifies as interpretation praeter legem. As a teleological reduction of this kind constitutes the counterpart of a teleological extension praeter legem (i. e. analogy), it should be governed by the same rules, and thus be applied only as a subsidiary means in cases where satisfactory solutions cannot be found within the wording of the provision. However, as shall be demonstrated in the following, the issue can be sufficiently remedied by way of interpretation secundum legem. 108 More precisely, the specific intent requirement may well act as a gateway to the macro-criminal dimension of the crime. To this end, it suffices to construe the notion of ‘intent’ as comprising a cognitive element (or knowledge/awareness), alongside the volitional element of aspiring after the group’s destruction. The precise ascertainment of this element requires great care. Viewed analytically, 449 Darfur-Report, para. 491. See also: Kreß, JIntCrimJust 3 (2005), 562, 576–7; Kreß, IntCrimLRev 6 (2006), 461, 497–8. 450 Preamble. 451 Article 5 para. 1 ICC-Statute: ‘the most serious crimes of concern to the international community as a whole’. 452 ICTY Krstic ´, AC, 19 April 2004, para. 223; ICTY Jelisic´, AC, paras 48, 77. 453 Kirsch, in: Behrens/Henham, Elements of Genocide, 12–15; Behrens, in: Behrens/Henham, Elements of Genocide, 74–5; Goldsmith, GenocideSP 5 (2010), 245–6; Ambos, IRRC 91 (2009), 846. In its first articulation on the matter, the ICC goes even farther, requiring a ‘concrete and real threat’: ICC Al Bashir, PTC, 4 March 2009, para. 124: ‘... [T]he protection offered by the penal norm defining the crime of genocide – as an ultima ratio mechanism to preserve the highest values of the international community – is only triggered when the threat against the existence of the targeted group, or part thereof, becomes concrete and real, as opposed to just being latent or hypothetical.’ 454 ICC-Elements of Crimes stipulate that all acts under Article 6 ICC-Statute [=Article II] must constitute conduct which ‘took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.’ (ICC-Elements of Crimes, Article 6 lit. (a) Element (4); Article 6 lit. (b) Element (4); Article 6 lit. (c) Element (5); Article 6 lit. (d) Element (5), Article 6 lit. (e) Element (7)).

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determining the required content of awareness on the part of the offender is a twotiered task: First, the necessary objects of awareness need to be ascertained, i. e. the consequences that the perpetrator must have been aware of at the time of committing the genocidal acts. Second, the required extent of likelihood as to the realization of such consequences, as imagined by the perpetrator, must be determined. Regarding the first step, at the outset, the perpetrator must have had some sort of imagining of the group’s full or partial destruction. This mental image depicts a subjective analogon to the objective ‘attack against any civilian population’ as required by crimes against humanity. Although such a constructional discrepancy between these crimes may seem to run afoul of their historical kinship, it should be noted that the de facto gap is considerably narrowed by the fact that the offender’s awareness of a group’s impending destruction is ordinarily unprovable unless it can be inferred from a real-life development. In addition to foreseeing the group’s destruction, the offender must also be aware that his act or acts play a contributive role thereto, as only this creates the required nexus to the crime of genocide and translates an ordinary offence into a crime of international concern. In sum, the cognitive element thus consists of two constituent parts, requiring the perpetrator to have a certain level of awareness that (a) the given scenario will lead to the full or partial destruction of a protected group, and that (b) the perpetrator’s act has a contributive effect on the destructive goal. As regards the extent of likelihood the offender must assume, currently three different standards can be gleaned from international criminal law. A tacitly assumed low standard may well be behind the prevalent disinterest in the cognitive side of genocidal intent. It should be noted that the predominant view requires the individual acts committed to be motivated by the offender’s goal of seeing the protected group destroyed.455 On this premise, it would seem absurd for a perpetrator to act in pursuit of a destructive goal which he thinks is impossible to attain, or to the realisation of which he feels incapable of contributing.456 On the other hand, from the perpetrator’s perspective, a small chance that his acts may add to a campaign which could lead to the destruction of a group may be sufficient to motivate him to commit such acts. Consequently, a cognitive component which required nothing more than the assumption of a distant chance of contributing to the destruction of a group would be a cogent corollary of the volitional component of genocidal intent, and this may explain why judicial practice has, as yet, found it unnecessary to address the issue. However, in light of Article 30 ICC-Statute457 it seems overly bold to assume that such a tenuous awareness should be deemed sufficient. Pursuant to this provision, unless otherwise provided, the cognitive component (‘knowledge’) is an indispensible part of mens rea (Article 30 para. 1 ICC-Statute). In relation to consequences, ‘knowledge’ is defined as the awareness that a consequence will occur in the ordinary course of events (Article 30 para. 3 ICC-Statute). In other words, the probable occurrence of the consequence in the perpetrator’s eyes would be the

455

Infra, mn. 140. See also Kreß (MK, § 6 VStGB, mn. 78), according to whom a line must be drawn between irrational ‘wishful thinking’ of the perpetrator and relevant genocidal intent. 457 Supra, fn. 417. 456

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Article II 112, 113 knowledge threshold for incurring criminal liability.458 Accordingly, in terms of genocide, the perpetrator would at least have to be aware that a given development was likely to entail the full or partial destruction of a protected group, and that his acts would probably play a contributive part therein.459 113 Ultimately, however, a moderate cognitive element between these two standards seems preferable. This is suggested on closer inspection of Article 30 para. 2 ICCStatute. If the perpetrator additionally needed to be aware of the probable realisation of a consequence (‘is aware that it will occur’) he aims to bring about (‘means to cause that consequence’), the first alternative of the provision would be superfluous, since the second alternative would always be fulfilled. Likewise, there would be no reason for the inclusion of the alternative formulation (‘or’) in Article 30 para. 2 ICC-Statute. Correctly construed, therefore, the provision indicates that a lower extent of knowledge suffices whenever the perpetrator means to bring about an illicit consequence. However, the norm is silent as to the precise degree of such knowledge that is required. To fill this lacuna, recourse may be taken to international jurisprudence. As mentioned above, particularly in their earlier case law, the UN ad hoc tribunals recognized a standard similar to dolus eventualis as meeting the demands of mens rea under international criminal law, which imposes lesser requirements on the cognitive element. Accordingly, mere awareness of the risk that a particular consequence may occur was generally deemed sufficient to establish criminal responsibility.460 From the present perspective, applying this standard to the cognitive component of genocidal intent would allow a balance to be struck between the conflicting issues at stake: On the one hand, if certain foresight or awareness of a substantial likelihood of destruction were to be required in order to punish a person for genocide, the genocidal campaign would likely have to have advanced to a point beyond rescue, which would clearly frustrate the Convention’s preventive purpose. On the other hand, if the cognitive component were reduced to the imagining of distant possibilities, the wrong of the offence and the blameworthiness of the offender would be lesser than in most cases of crimes against humanity. This would hardly be consonant with the widely acknowledged role of genocide as the ‘crime of crimes’.461 Finally, the standard proposed here best captures the underlying idea of the ICC-Elements of Crimes. The Elements require, inter alia, that the genocidal act is committed ‘in the context of a manifest pattern of similar conduct directed against [a protected] group.’462 An introductory note to the Elements makes it plain that the term ‘in the context of’ would ‘include the initial acts in an emerging pattern.’463 In terms of the mens rea element, the 458 In its first judgment, the ICC has recently corroborated this restrictive standard of knowledge vis-a`-vis consequences (ICC Luganga, TC, 14 March 2012, para. 1011. Similarly: ICC Bemba, PTC, 15 June 2009, paras 360–9), even though the Pre-Trial Chamber had sympathized with a standard similar to dolus eventualis (ICC Lubanga, PTC, 29 January 2007, para. 352). 459 A similar position was seemingly taken by the ICTY-Trial Chamber in Blagojevic ´ and Jokic´, which held that ‘[i]t is not sufficient that the perpetrator simply knew that the underlying crime would inevitably or likely result in the destruction of the group. The destruction, in whole or in part, must [also?] be the aim of the underlying crime(s).’ ICTY Blagojevic´ and Jokic´, TC, 17 January 2005, para. 656 (emphasis added). 460 Werle, Int’l Criminal Law (2nd ed.), mn. 409. 461 Similarly: Kreß, MK, § 6 VStGB, mn. 14. 462 See supra, fn. 454. 463 ICC-Elements of Crimes, Article 6, Introduction (a).

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emergence of a genocidal pattern of acts would normally mark the point when the imagining of a marginal possibility of destruction transforms into the awareness of a realistic chance that a group may in fact ultimately be destroyed, in whole or in part. Probability or near certainty of destruction, however, could not yet be assumed by a perpetrator at that point in time. Thus, it can be concluded that the cognitive element of genocidal intent 114 presupposes the offender’s awareness that (a) the given scenario implies a realistic chance of leading to the full or partial destruction of a protected group, and (b) that his act may have a contributive effect on the realisation of this destructive goal. cc. ‘With’ intent to destroy The word ‘with’ denotes a link between the incriminated act and the destructive 115 purpose, the exact content of which calls for clarification. In the context of timing, it sets out that it is sufficient and necessary for the required ‘intent to destroy’ to be present when the actus reus is carried out.464 The destructive goal may thus materialize extemporaneously and does not require premeditation.465 By the same token, prior or subsequent awareness of a genocidal campaign, and the act’s potential as constituting a part thereof, is irrelevant. Secondly, the question arises if the goal of seeing the protected group destroyed 116 (in whole or in part) must also be the perpetrator’s motivation to carry out acts under Article II lit. (a)-(e). As this touches on the intricate role of motives within Article II, the issue shall be addressed below in the context of the term ‘as such’.466 dd. ‘Purpose-based approach’ vs. ‘knowledge-based approach’ As opposed to the prevailing ‘purpose-based approach’ outlined above, an 117 alternative viewpoint has gained considerable ground within academic writing in recent years, usually referred to as the ‘knowledge-based approach’.467 This concept proceeds from the fact that in nearly all real-life instances genocide requires collective activity in the form of a broad-scale campaign, as isolated perpetrators normally lack the means of bringing destruction to a sufficient part of a protected group and cannot, therefore, seriously be held to have acted with genocidal intent, irrespective of its precise requirements.468 Normally, the participants of such collective operations can be roughly divided into two categories: a small number of string-pullers and masterminds behind the genocidal plot on the one hand, and 464 On the simultaneity principle with respect to genocide, see: Behrens, in: Henham/Behrens (eds), The Criminal Law of Genocide, 125–40, 133, 134. 465 Werle, Int’l Criminal Law (2nd ed.), mn. 754; ICTY Krstic ´, TC, 2 August 2001, para. 572. The Chamber gave the example of an armed force deciding to destroy a group during a military operation, although its primary objective was unrelated to the group’s fate. 466 Infra, mns 140-145. 467 The approach is currently represented, inter alia, by the following authors: Greenawalt, ColumbiaLRevev 99 (1999), 2288–9; Goldsmith, GenocideSP 5 (2010), 245–6.; Kreß, IntCrimLRev 6 (2006), 461, 498; Kreß, JIntCrimJust 3 (2005) 562, 577; Kreß, MK, § 6 VStGB, mn. 78, 82–8; Ambos, IRRC 91 (2009), 854–8 (proposing a combined structure- and knowledge-based approach); van der Wilt, JIntCrimJust 4 (2006), 241–4; Vest, ZStW 113 (2001), 480–6; Vest, Genozid durch organisatorische Machtapparate (2002), 101, 107–10; Vest, JIntCrimJust 5 (2007), 781, 786–97; Bassiouni/Manikas, The Law of the ICTY, 572; Gil Gil, ZStW 112 (2000), 395; similarly: Schabas, Genocide in Int’l Law (2nd ed.), 242–3; 264. 468 See: Kreß, MK, § 6 VStGB, mn. 78.

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Article II 117–119 on the other a much larger number of interchangeable ‘foot soldiers’469, henchmen and followers who contribute to the execution of the plan. Of these two types of perpetrators, the argument runs, only the leading figures need to act purposefully,470 whereas with regard to the others, a certain degree of knowledge is sufficient.471 118 Although it would go beyond the scope of the present commentary to deal with all of the aspects of the knowledge-based approach, its key points shall now be critically appraised. The approach is essentially predicated upon the premise that lege artis interpretation of the specific intent requirement does not compel a restrictive construction in terms of the purpose-based approach, and thus allows for a fresh and more suitable reconception.472 This premise is, however, challengeable. As the Convention is set out in five equally authentic languages, its interpretation is governed by the precepts of Articles 33 paras 3 and 4 VCLT and must therefore begin by either refuting or verifying the rebuttable presumption that the terms circumscribing genocidal intent have the same meaning in each authentic text.473 To this effect, Greenawalt474 and Ambos475 have conclusively demonstrated that in the respective domestic criminal law systems the English (‘intent’), French (‘intention’) and Spanish (‘intencio´n’) terms have been held to embrace cases of mere foresight of a particular consequence, as well as cases of desiring a certain result. While this may raise hopes for a common ordinary meaning conveniently amenable to the knowledge-based approach, the Russian and Chinese versions suggest otherwise. 119 As regards the Russian text, ‘` \O[T_T\WT[ b\Wfa]UWak’ commonly means ‘with the purpose/aim to destroy’ and thus clearly demands goal-directed action on the part of the perpetrator. This finding is not compromised by any divergent connotations in Russian legal terminology, as the noun ‘\O[T_T\WT’ (aim) is not used as a technical term in Russian criminal law in relation to intent: In Article 25, the General Part of the Russian Criminal Code (RCC) discerns ‘direct intent’ 469

Ambos, IRRC 91 (2009), 833, 846. While Vest (ZStW 113 (2001), 484) noted that in extremis a genocidal campaign would be conceivable where none of the individuals involved actually seek to destroy the victimized group, Kreß (JIntCrimJust 3 (2005), 562, 573–4; Kreß, MK, § 6 VStGB, mn. 82) rightly notes that such a scenario is of negligible importance in practice. See also Ambos (IRRC 91 (2009), 854–8) who inserts a third category, discerning top-/mid- and low-level perpetrators. 471 Details are controversial. Some authors refrain from specifying the required extent of knowledge. (For instance, according to the pioneer of the knowledge-based approach Greenawalt (ColumbiaLRev 99 (1999), 2288) the requirement of genocidal intent should be satisfied ‘if the perpetrator acted in furtherance of a campaign targeting members of a protected group and knew that the goal or manifest effect of the campaign was the destruction of the group in whole or in part.’ (Emphasis added). Similarly: Ambos, IRRC 91 (2009) 858.) Kreß (IntCrimLRev 6 (2006), 498) substantiates the knowledge-requirement, submitting that the genocidal act has to be committed ‘with the knowledge to further thereby a campaign targeting members of a protected group with the realistic goal of destroying that group in whole or in part.’ (Emphasis added). Vest (Genozid durch organisatorische Machtapparate (2002), 104–5; Vest, JIntCrimJust 5 (2007) 793) goes further and demands ‘practically certain’ foresight of the destruction to come. 472 See: Kreß, JIntCrimJust 3 (2005), 562, 570. 473 For the correct application of Article 33 VCLT see: Schiffbauer, Vorbeugende Selbstverteidigung, 291–4; Villiger, Commentary on the VCLT, Article 33 mn. 8–17; Papaux/Samson in: Corten/ Klein, VCLTs Commentary Article 33, paras 72–92; Do¨rr in: Do¨rr/Schmalenbach, VCLT Commentary, Article 33 mns 33–9. 474 Greenawalt, ColumbiaLRev 99 (1999), 2259, 2266–70. 475 Ambos, IRRC 91 (2009), 833, 842–5. 470

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(^_n[]X b[j`TZ) and ‘indirect intent’ (Y]`QT\\jX b[j`TZ), with only the former requiring a volitional element, reflected by the term UTZO\WT (wish, desire). Further, the word ‘\O[T_T\WT’ has not been incorporated into the domestic Russian provision on genocide in Article 357 RCC, which rather uses the passive participle ‘3TX`aQWn, \O^_OQZT\\jT \O’ (Actions, aimed/directed at). Accordingly, Russian legal theory and jurisprudence do not attach specific legal implications to the term.476 It therefore remains to conclude that – in accordance with its normal usage – the Russian wording does not allow for an interpretation other than the purpose-based approach. The same holds true for the authentic Chinese version. In order to characterize 477 (yìtú), yì meaning ‘wish, the specific intent-element, it employs the term urge’, and tú for ‘to plan, to design’ if conceived as a verb, or for ‘plan’ or ‘map’ if taken to be a noun. Together, ‘yìtú’ means ‘goal-directed’/‘aspiring for a goal’. This understanding concurs with the usage of (yìtú) in the criminal law context. Already exisiting in preceding criminal law regulations, the term was carried over into the current criminal code of the Republic of China (Taiwan) introduced in 1935, wherein it is employed to signify a specific intent-requirement which goes beyond the demands of general intent stipulated in Article 14 of the code. Circumscribing its precise content, academic commentaries equate the term with (yìyú),478 which stresses the element of desire or aspiration ( (yú) meaning ‘desire’, ‘longing’, ‘appetite’, ‘wish’), (xı¯wa`ng)479 which means ‘to wish for’, (mu`di),480 which means ‘goal’, ‘aim’ or ‘purpose’. The ‘to desire’, ‘to hope’, or Criminal Code of the People’s Republic of China understands (yìtú) in the same manner, though it does not employ the term frequently.481 In this light, it seems safe to conclude that the Chinese wording does not extend to perpetrators who act without aspiring after the full or partial destruction of a group. The presumption of equal meaning according to Article 33 para. 3 VCLT thus being rebutted, Article 33 para. 4 VCLT next calls for the removal of the given discrepancies by application of Articles 31 and 32 VCLT. At the outset, considering the ordinary meaning of the authentic text versions, some weight should be given to the fact that all five versions allow for an interpretation in accordance with the purpose-based approach, whereas it is the knowledge-based approach that it is not possible to harmonize with the Russian and the Chinese versions. Moreover, the motive-requirement ‘as such’ can scarcely be explained on the basis of the knowledge-based approach. Rightly construed, this element demands the destructive intent to be evoked only by such motives as are based on the group’s national, ethnic, racial or religious features.482 Apparently therefore, in terms of Article II, genocidal intent needs to be something the perpetrator can be motivated 476

See, for instance: Kochoi, Ugulovnoe pravo, 56. The version of 1948 and the revised version of 1952 used the traditional writing . 478 Feng Jinxiang/ . Xingfa xiangjie/ , 198. 479 Guo Wei/ . Xingfaxue zonglun/ , 163. 480 Chen Wenbin/ . Zhongguo xin xingfa zonglun/ , 113. 481 Examples are Article 243 (falsely implicating another person for the purpose of having him criminally investigated) and Article 305 (witnesses, experts or interpreters making false statements for the purpose of framing another person or to conceal evidence). 482 Infra, mns 146-148. 477

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Article II 123–125 into, something which is amenable to being aroused, engendered or provoked. Mere awareness or knowledge do not qualify as such. Wilful decisions and the setting of goals do. 124 Further guidance can be drawn from the ICC-Statute, which constitutes a relevant subsequent agreement pursuant to Article 31 para. 3 lit. (a) VCLT. Unlike the formulations contained in the other authentic versions of the Genocide Convention, the Chinese formulation of genocidal intent was rephrased during the (yìtú) was altered into drafting of the ICC-Statute and the conventional term (xu`yì), combining the aforementioned (yì) with (xu`), which means ‘to store’ or ‘to accumulate’ as well as ‘to cultivate’ or ‘to grow’. The term does not appear in the criminal code of the People’s Republic of China483 and hence does not bear a specific statutory meaning. In ordinary language, however, it distinctly connotes an element of premeditation or deliberation and may be best translated as ‘malice’. In any event, an understanding in terms of mere knowledge must be ruled out. Similarly, the Arab version of the ICC-Statute employs the verb (qa ada) which means ‘to aim at’, ‘to move towards’ or ‘to direct one’s efforts towards’,484 and can also not be translated as ‘knowledge’ or ‘awareness’. Unlike commonly assumed,485 therefore, the reformulation of the Chinese version and the freshly couched Arab wording demonstrate that the ICC-Statute did not altogether copy the definition of Article II, but in fact sent a signal that nothing short of aiming at a group’s full or partial destruction shall be regarded as genocidal intent. 125 This finding is supported by the preparatory work of the Convention, which may be invoked as a supplementary means of interpretation pursuant to Article 32 VCLT. As expounded above,486 the purpose-based approach was proposed by the Secretariat Draft and found wide approval in both the Ad Hoc Committee and the Sixth Committee. Even more conclusively, at the Sixth Committee stage an amendment similar in scope to the knowledge-based approach was taken to vote and rejected by a strong majority.487 This alternative conception proposed that the draft passage ‘acts aimed at the physical destruction’ should not be construed as implying the perpetrator’s desire to destroy. Instead, it should be considered an objective element, requiring the individual acts to result in the destruction of groups.488 Although not clearly enunciated at the time, it seems reasonable to hold that the advocates of this view did not mean to install a causal connection in terms 483

The Criminal Code of the People’s Republic distinguishes direct intent ( zhijie jianjie gu`yì), the former requiring, inter alia, the ‘wish’ or gu`yì) and indirect intent ( ‘hope’ for a dangerous result to occur. Article 14 reads: ‘An intentional crime is a crime constituted as a result of clear knowledge that one’s own act will cause socially dangerous consequences, and of hope for or indifference to the occurrence of those consequences. ....’ Beyond this general standard of criminal intent, a small number of offences additionally require the perpetrator to aim at or seek for a goal ulterior to the completion of the actus reus, which is usually marked by the said term (mu`di). By way of example, the unauthorized production of firearms (Article 126 (1), (2)) and the smuggling of obscene publications (Article 152 (1)) may be adduced, which require the perpetrator to aim at the illegal sale of the guns or to seek for profit or dissemination of the said publications, respectively. 484 For a valuable insight into etymology and meaning of (qa ada), see: Bravmann, Studies in Semitic Philology, 559–62; Wehr, Arabisches Wo¨rterbuch, 1029. 485 See: Schabas, Genocide in Int’l Law (2nd ed.), 5. 486 Supra, mns 20-23. 487 UN Doc. A/C.6/SR.73, 97. 488 UN Doc. A/C.6/SR.73, 95–6 (Mr. Morozov, Soviet Union; Mr. Chaumont, France).

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of the over-exclusionary ‘but-for’-test, but rather sought to clarify that the individual act needed to have a contributory effect on the destructive result. Subjectively, vis-a`-vis this linkage between individual act and destructive result, general intent was deemed sufficient.489 On the basis of this conception, a person acting with mere awareness of contributing to a genocidal campaign would be criminally liable for genocide. This proposal may thus be regarded as an early variant of the knowledge-based approach, and its defeat by 36 votes to 11 in the Sixth Committee490 strongly militates against any revival of such a conception in the current interpretation of Article II. Moreover, it should be noted that the authentic Chinese text version of 1948 underwent a meticulous revision process in 1952,491 in the course of which Article II was largely rephrased but nevertheless (yìtú), implying purpose-orientation. In retained the aforementioned term response to the ensuing circulation of the revised text amongst member states no rejections were registered,492 providing a further argument in favour of the purpose-based approach. However weighty the aforementioned formal points may seem, the pivotal 126 question remains if the interpretation proposed here is fully reconcilable with the Convention’s purpose of effectively preventing and punishing genocide (Article I). The proponents of the competing stance emphasize this point particularly,493 claiming that the purpose-based standard is insufficient to adequately cover the commonplace scenario of subordinate participants who – often in obedience to superior orders – knowingly participate in the execution of a genocidal policy without personally aiming at the destruction of the targeted group.494 Upon closer inspection, however, concerns of this kind turn out to be unfounded, and lacunae within the Convention’s scope of protection should not be assumed: While such subordinate participants would be perpetrators of genocide according to the knowledge-based approach, the purpose-based approach can only consider them as accomplices (assistants) to genocide, pursuant to Article III lit. (e) of the Convention.495 This categorization bears two consequences: First, forms of derivative criminal liability (instigating or ordering genocide) of the superior may be ruled out for want of a principal offence. Conversely, the superior’s conduct can also not be assumed to be a principal offence, for, even if acting purposefully, the superior would not personally carry out an act under Article II lit. (a)–(e). He would thus only be punishable as a perpetrator if the subordinate’s action could be attributed to him. This shows that the practicability and persuasiveness of the purpose-based approach essentially hinges on the availability and applicability of functioning concepts of criminal attribution. On the level of international criminal law, the unfolding discourse on criminal participation has hitherto produced two 489

UN Doc. A/C.6/SR.73, 96 (Mr. Chaumont, France). UN Doc. A/C.6/SR.73, 97. 491 Infra, Article X mn. 10. 492 Robinson, Genocide Convention, 117. 493 Aside from this argument, an interesting number of points are brought forward by the proponents of the knowledge-based approach, which cannot be attended to in the present study. 494 Kreß, JIntCrimJust 3 (2005), 562, 573–4; Greenawalt, ColumbiaLRev 99 (1999), 2279–82. 495 Accordingly, this approach is also known as the ‘complicity solution’ (Kreß, JIntCrimJust 3 (2005), 573) or – with a slightly pejorative tone – ‘complicity doctrine’ (Greenawalt (ColumbiaLRev 99 (1999), 2282), who deems the utilization of complicity a means of circumventing the specific intent requirement). 490

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Article II 126, 127 approaches, (a) ‘commission through another’ as provided for in Article 25 para. 3 lit. (a) ICC-Statute, and (b) the concept of ‘joint criminal enterprise’ (JCE). As regards the former, the ICC, as the premier guardian and interpreter of the Statute, has thus far chosen to assess perpetratorship in accordance with the so-called ‘control-of-the-crime-approach’.496 Consequently, ‘commission through another’ can only be assumed where the superior in fact dominated the subordinates’ acts, whether immediately or by virtue of a hierarchically structured machinery of power (‘Organisationsherrschaft’).497 This may be a clear rule in cases involving stringent military hierarchies but could be hard to ascertain in other situations, for example the chaotic conditions of a civil war within a failed state. Where the required controlling influence cannot be established beyond doubt, a certain problem arises in the construction: The person behind the executor of the actus reus, even if possessing the required intent, would only qualify as an instigator, whose criminal liability calls for the existence of a principal offence. The executor of the material act, however, would not qualify as a principal offender for lack of genocidal intent. Thus, neither person could be prosecuted under Article II. Nevertheless, such lacunae should not be feared. First, masterminds, agitators and instigators of genocide still face liability for the inchoate crimes provided by Article III lit. (b)–(d) which do not require the completion of a principal offence. Second, on-site executors not sharing the genocidal intent would still be punishable for crimes against humanity, provided that the collective action is widespread or systematic in character. And third, in Lubanga the ICC Trial Chamber demonstrated a remarkably wide conception of Organisationsherrschaft, further diminishing the scope of unwarranted impunity. 127 Alternatively, the concept of joint criminal enterprise (JCE) as devised by the ICTY Appeals Chamber may be drawn upon, particularly the so-called ‘basic’ and ‘systemic’ forms (JCE I and JCE II, respectively).498 JCE I presupposes, first, a group of persons who share a ‘common plan, design or purpose’ to commit a crime under international law, and second, a ‘significant contribution’ by each JCE-member to the jointly committed crime.499 Accordingly, a group of masterminds and hate-mongers sharing a genocidal purpose would still be liable as joint offenders for the acts of the on-site executors, as these acts can be attributed to them as JCE-members, constituting their own ‘significant contribution’ to the joint crime of genocide. Within the ICTY’s jurisprudence, ascribing a third

496 ICC Lubanga, PTC, 29 January 2007, paras 330–4, 342–67; ICC Katanga and Chui, PTC, 30 September 2008, paras 480–539; ICC Lubanga, TC, 14 March 2012, paras 1003–5. 497 For the doctrine of Organisationsherrschaft and its benefits within the realm of international criminal law, see: Ambos, Command responsibility, in: Nollkaemper/van der Wilt, System Criminality, 142–56. 498 For an overview, see: Ambos, Treatise on International Criminal Law, 123–27; Werle, Int’l Criminal Law (2nd ed.), mns 455–64; Cryer/Friman/Robinson/Wilmshurst, An Introduction (2nd ed.), 367–74. 499 Formerly having persistently held that any act ‘in some way directed towards the furthering of the common plan’ is sufficient, the Appeals Chamber in Brd-anin (3 April 2007, para. 430) raised the threshold considerably, determining that anything short of a ‘significant’ contribution to the jointly committed crime shall not be considered in terms of JCE I.

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person’s acts to a JCE-member has found recognition by the Appeals Chamber.500 As regards the mental requirements of genocide, it appears to be common ground that whether the non-JCE member shared the genocidal intent of JCE members, or even knew that a joint genocidal enterprise was existent, is not determinative for attributing his acts to a participant of the JCE.501 The physical prerequisites are less sharply contoured. In Brd-anin, the Appeals Chamber repeatedly held that JCE liability may be incurred by using non-participants of the JCE to contribute to the common purpose.502 In this context, the Chamber cited the prosecution’s submission which proposed that imputing a third person’s act to a JCE member required that person to be used as a tool to contribute to the joint enterprise.503 While these findings bear a certain resemblance to the ‘control-of-the-crime-approach’, the Appeals Chamber in Krajisˇnik gave a more open formulation, holding that ‘using a non-JCE member’ should be assessed on a case-by-case basis, and may be indicated by ‘evidence that the JCE member explicitly or implicitly requested the non-JCE member to commit such a crime or instigated, ordered, encouraged, or otherwise availed himself of the non-JCE member to commit the crime’.504 Evidently, this jurisprudence opens up an (arguably too) broad avenue to impute genocidal acts of low-level executors to the masterminds behind them. Accordingly, on the basis of JCE I, a principal offence may be assumed, and perpetrators of acts under Article II lit. (a)-(e) who knowingly but not purposefully add to the destruction of a protected group can be punished as accomplices to genocide. In certain instances, liability to high-level participants may also be established on 128 the basis of JCE II.505 This mode of participation demands the joint enterprise to be manifested in an organized system of ill-treatment (typically a concentration or detention camp). All crimes occurring in the course of the ordinary operation of the system are then equally attributed to anyone who acts in furtherance of the system despite being aware of its criminal nature. Irrespective of which concept should be given preference, the foregoing illustrates 129 that the problem of criminal attribution is well amenable to solution. Consequently, the issue of subordinates not personally sharing the destructive purpose of the highlevel authors of the genocidal plot does not necessarily call for lowering the intent requirements to mere knowledge. Finally, one may point to the fact that criminal attribution of third parties’ acts 130 by virtue of concepts like ‘Organisationsherrschaft’ or ‘JCE’ is alien to many domestic criminal law systems and that it would thus seem unsound if recourse had to be taken to such concepts in order to bring the definition of genocide to function in typical cases.506 This inconsistency, however, is not inherent in the purpose-based approach, but rather is grounded in the formulation of Article II, and likewise arises on the basis of the knowledge-based approach. As mentioned 500 ICTY Brd-anin, AC, 3 April 2007, para. 410. For more details and analysis, see: Berster, in: Klip/Sluiter (Vol. 33), 741–8. 501 ICTY Karadz ˇic´, AC, 11 July 2013, para. 79; ICTY Krajisˇnik, AC, 17 March 2009, para. 226; ICTY Brd-anin, AC, 3 April 2007, para. 410. 502 Brd-anin, AC, 3 April 2007, paras 411, 413, 430, 431. 503 Brd-anin, AC, 3 April 2007, para. 412. 504 ICTY Krajisˇnik, AC, 17 March 2009, paras 225–6. 505 See infra, Article III, mns 72–79. 506 Kreß, JIntCrimJust 3 (2005), 562, 574–5.

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Article II 130–132 above, genocide typically manifests itself in the form of large-scale collective action, devised and fuelled by string pullers and masterminds and carried out by an army of devout bigots, obedient followers or even non-committed assistants. In disregarding such diversity, the definition in Article II merges all types of perpetration into one, combining an actus reus which (with the exception of paragraph (c)) would normally be committed by low-level participants with a specific intent typically held by the masterminds of the genocidal campaign.507 To resolve any ensuing conceptional friction, two general methods can be followed, namely, (a) reducing the specific intent to mere knowledge – which makes the non-committed on-site executors into the perpetrators and the top-level initiators into the accomplices of the crime, or (b) imputing the genocidal actions of the (non-committed) perpetrators to the initiators and superiors on the sidelines and making them liable as perpetrators. Clearly, the second option is more in line with the Convention’s purpose of effectively preventing and punishing genocide, as it attaches the greatest extent of responsibility to the driving forces behind the collective action. Drawing upon the Holocaust as a litmus-test in this context, it would surely have been unacceptable if a person like Hitler could have only been tried for complicity in genocide rather than as a perpetrator of genocide. In any event, recourse to rules on the attribution of individual genocidal acts to participants on a higher level would seem indispensible for the proper functioning of Article II, even if such rules may be unknown in some domestic criminal law systems. 131 To sum up, due consideration of the textual, contextual, teleological and historical aspects of Article II leads to the conclusion that the purpose-based approach best accommodates the discrepancies between the authentic text versions. b. In whole or in part 132

The Convention would be a blunt instrument if it required the perpetrator to aim at the impossible. Therefore, the specific intent required need not be directed at ‘the complete annihilation of a group from every corner of the globe’508 but only at the destruction of a fraction, or ‘part’, of the group. However, construing the exact meaning to be attached to the ‘part’-element is a difficult task. Only vague suggestions can be gleaned from the Convention and its genesis. The immediate context, the group’s destruction ‘in whole’, at least reveals that a ‘part’ needs not be of a kind whose destruction would lead to the extinction of the group in its entirety, as the element would otherwise be dispensable.509 On the other hand, in light of the chief protective purpose of the Convention, only such fractions whose destruction would clearly hamper or endanger the group’s capacity as part of the spiritual resources of mankind should be assumed to qualify.510 Furthermore, the travaux indicate that the ‘in part’-element was added to find a compromise between 507

Kreß, JIntCrimJust 3 (2005), 562, 575. ILC Draft 1996, Yearbook of the Interntional Law Commission 1996 II, Article 17 para. 8. 509 Unduly narrow therefore: U.S. Code; Chapter 50 A; Section § 1093: ‘As used in this chapter – ... (8) the term ‘substantial part’ means a part of a group of such numerical significance that the destruction or loss of that part would cause the destruction of the group as a viable entity within the nation of which such group is a part.’ See also: Kreß, MK, § 6 VStGB, mn. 75. 510 This finds expression, though in more general terms, in the ICTY’s finding that ‘the targeted portion must comprise a significant enough portion to have an impact onf the group as a whole.’ – ICTY Tolimir, TC, 12 December 2012, para. 749; ICTY Krstic´, AC, 19 April 2004, para. 8. 508

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extending genocide to cases where a single individual was attacked as a member of the group (as proposed by the French delegation) and reducing genocide to the intended destruction of whole groups.511 This thus suggests that the word ‘part’ was meant to refer to more than a small number of group-members.512 Taken together, a still imprecise definition evolves, demanding the targeted ‘part’ to be composed of more than a small number of group-members, the destruction of whom would either considerably enfeeble or concretely endanger the group as a whole.513 Largely in line with these criteria, the prevailing formula within international 133 jurisprudence and scholarly writing requires that ‘the part must be a substantial part of the group.’514 Upon closer examination, the attribute ‘substantial’ can theoretically arise from three different aspects, namely (a) the sheer numeric size of the targeted portion, (b) specific properties or skills of the targeted members which are pertinent for the group’s physical or social survival and (c) a number of circumstantial aspects like the strategic importance of the group-members’ area of settlement or the risk that a regional massacre will kindle a large-scale genocidal frenzy. In evaluating these criteria, the Krstic´ Appeals Judgment provides useful guidance in proposing that the numeric size be taken as ‘the necessary and important starting point’ and then should be supplemented with additional factors, the applicability and relative weight of which ‘will vary depending on the circumstances of a particular case.’515 As regards quantity, it would seem uncontested that a substantial number of 134 members relative to the group’s total size qualifies as a ‘part’ in terms of Article II. For instance, directing one’s destructive intent against two thousand persons may 511

See supra, mn. 24. See in particular: Report of the Preparatory Committee on the Establishment of an International Criminal Court, 14 April 1998 A/CONF.183/2/Add.1 11, fn. 1: ‘The reference to ‘intent to destroy, in whole or in part ... a group, as such’ was understood to refer to the specific intention to destroy more than a small number of individuals who are members of a group.’ Further, Greenawalt, ColumbiaLRev 99 (1999), 2259, 2290; Kreß, IntCrimLRev 6 (2006), 461, 489; Robinson, Genocide Convention, 63: ‘[T]he intent to destroy a multitude of persons of the same group must be classified as genocide even if these persons constitute only part of a group ... provided the number is substantial because the aim of the convention is to deal with action against large numbers, not individuals even if they happen to possess the same characteristics.’ 513 Similarly, in a letter to the U.S. Senate’s Foreign Relations Committee in 1950 (Executive Sessions of the Senate Foreign Relations Committee, Historical Series 781–805, 1976, 370), Lemkin expressed the view that ‘destruction in part must be [of such] a substantial nature ... so as to affect the entirety’. 514 ICTY Krstic ´, AC, 19 April 2004, para. 12 (emphasis added); ICJ, Bosnian Genocide case, ICJ Reports 2007, 126 (para. 198); ICC Al-Bashir, PTC, 4 March 2009, para. 146; Kreß, IntCrimLRev 6 (2006), 490; Behrens in: Behrens/Henham, Elements of Genocide, 87; Robinson, Genocide Convention, 63; Jeßberger in: Gaeta, Genocide Convention, 108. For a different opinion, see: Paust, MichJIL 11 (1989), 95–7. 515 ICTY Krstic ´, AC, 19 April 2004, paras 12, 14, confirmed by ICTY Karadzˇic´, AC, 11 July 2013, para. 66. Besides this size-based cumulative approach, alternative ways are being put forward. According to the Trial Chambers in Jelisic´ (para. 82) and Sikirica (para. 65) the fact that a specific part of the group is emblematic of the overall group or essential to its survival will satisfy the requirement of substantiality notwithstanding of size. A similar approach is suggested by the Trial Chamber in Tolimir (12 December 2012, para. 749): ‘Although the numerosity of the targeted portion in absolute terms is relevant to its substantiality, it is not dispositive ....’ Whitaker (Report on Genocide (UN Doc. E/CN.4/Sub.2/1985/6), para. 29) seems to favour an alternative consideration of size and quality aspects, holding that a substantial part may qualify by ‘a reasonably significant number, relative to the total of the group as a whole, or else a significant section of the group, such as the leadership.’ 512

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Article II 134–136 well be sufficient if the group totals no more than five or six thousand members. Below this level of certainty, however, legal interpretation is inevitably forced into a macabre numbers game: Would twenty, fifteen or ten percent of the entire group be worthy of the Convention’s protection?516 Facing such predicament, international legal bodies have at times deemed remarkably small ratios to be sufficient. Most prominently, the 1995 massacre that occurred at Srebrenica was found to constitute genocide by both the ICJ517 and the ICTY,518 though the targeted group of Bosnian Muslims in Srebrenica numbered around 40 000 and hence represented no more than 2.9 % of the Bosnian Muslim population.519 In 1982, the U.N. General Assembly was satisfied by an even smaller percentage, finding that the massacres committed against Palestinian civilians in the Sabra and Shatila refugee camps in Beirut by a Lebanese Phalangist militia amounted to genocide.520 According to the present view, a proportion of around 3 % alone would clearly undercut the numeric threshold of substantiality. Nevertheless, the targeted group-members may still qualify as a substantial part by virtue of the aforementioned additional aspects under (b) and (c), which shall be addressed below. 135 Alongside this threshold of relative quantity, the absolute magnitude must also be considered. The travaux suggest that an absolute minimum of targeted members needs to be set, below which genocide is per se excluded, however crucial these members may seem for the whole group’s existence. In light of the fact that some nations, ethnicities and religious groups are extremely small in size, the required minimum should be set very low. In any event, however, single persons are to be ruled out as constituting a substantial part of the group.521 As well as an absolute minimum, one may be tempted to assume an absolute numeric threshold beyond which a substantial part is given irrespective of its relative size. Indeed, it may seem intolerable that, for instance, the intentional killing of ten million members of a highly populous group would go unpunished under the Convention, even if the victims made up no more than 1 % of the group’s entire population. Nevertheless, such results, counterintuitive as they may seem, are inherent to the Convention’s group-centred perspective and are unavoidable without altering the definition of genocide and its protective purpose.522 136 In addition to relative or absolute quantity, qualitative aspects of the targeted group-members, in terms of special skills or positions, may also be considered in assessing the ‘substantiality’ of the given fraction. The extent to which such aspects may be drawn upon essentially depends on the disputed question as to whether genocide only envisages the physical destruction of groups or also extends to their 516

See: Alonzo-Maizlish, NYULR 77 (2002), 1398. ICJ, Bosnian Genocide case, ICJ Reports 2007, 166 (para. 297). 518 ICTY Krstic ´, TC, 2 August 2001, para. 599; ICTY Blagojevic´ and Jokic´, TC, 17 January 2005, paras 671–7. 519 ICTY Krstic ´, AC, 19 April 2004, para. 15, fns 25–7. 520 UN Doc. A/RES/37/123, D (2). Estimates on the number of victims killed vary roughly between 600 and 3500. The verdict of genocide has been objected to by a range of scholars. See, for instance, Schabas, Genocide in Int’l Law (2nd ed.), 541–2. For an early legal examination on the Sabra and Shatila massacre, see: Malone, The Kahan Report. 521 Greenawalt, ColumbiaLRev 99 (1999), 2290; Kreß, IntCrimLRev 6 (2006), 489. 522 Supra, mn. 5. In Krstic ´ (19 April 2004, para. 12) the ICTY Appeals Chamber possibly opined otherwise, holding that ‘[t]he number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group.’ (Emphasis added). 517

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social extinction. From the narrower perspective, only such qualities could be taken into account as are crucial for the group’s physical survival. For example, the intended specific killing of farmers or doctors might be deemed as being directed against a substantial part of the group, even if the relative magnitude of the targeted part would be small. Pursuant to the extensive notion of destruction proposed here,523 the aspects eligible to be taken into account also extend to individual skills and properties which are indispensible for the group’s social maintenance.524 On this basis, for instance, a comparatively small number of priests, monks or members of a religious caste may qualify as a substantial part of religious groups. Lastly, a range of further factors may be drawn upon which flow from the 137 prevailing circumstances in a given situation, rather than the targeted fraction’s size or qualities, and may thus be labelled ‘circumstantial’. The seminal Krstic´ Appeals judgment makes mention of two such aspects relative to the Srebrenica massacre. First, it ascribes relevance to the fact that the Srebrenica area formed a corridor between two disconnected parts of the Republica Srpska, the capture and ethnic purification of which would strengthen Serb military power to a point that seriously undermined the viability of the Bosnian Muslim state and the continued survival of its population.525 This finding implies the abstract rule that the intended destruction of a part of a group in a place of such strategic prominence that its seizure imperils the existence of the group as a whole may well be considered in assessing the ‘substantiality’-requirement. Being in line with the definition of ‘in part’ given above, this finding does not give rise to significant criticism. It should be noted, however, that the rule is also likely to cover military operations of nongenocidal character, meaning that particular care in ascertaining the motiveelement (‘as such’) is required in cases of this kind.526 Moreover, the ICTY Appeals Chamber argued that Srebrenica was the most 138 visible of the ‘safe areas’ established by the UN Security Council in Bosnia, and that the elimination of its Muslim population thus served ‘as a potent example to all Bosnian Muslims of their vulnerability and defenselessness in the face of Serb military forces.’527 Although the intended meaning of this passage remains vague, it may be interpreted as referring to the inflammatory potential of ‘emblematic’ occurrences like the Srebrenica killings, which could give rise to conflagrations of further violence and hence endanger the group in its entirety. In this light, falling victim to a potential trigger-incident may constitute a contributive factor for a set of victims to be considered a ‘substantial part’ of the group. On the other hand, the fact alone that a massacre has highly symbolic power does not mean that it has a 523

Supra, mns 2-3. Along those lines, the Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992) (UN Doc. S/1994/674, para. 94) held that ‘[i]f essentially the total leadership of a group is targeted, it could also amount to genocide. Such leadership includes political and administrative leaders, religious leaders, academics and intellectuals, business leaders and others – the totality per se may be a strong indication of genocide regardless of the actual numbers killed.’ (Emphasis in the original). 525 ICTY Krstic ´, AC, 19 April 2004, para. 15 (referring to ICTY Krstic´, TC, 2 August 2001, paras 12, 17). Affirmative: ICTY Popovic´ et al., TC, 10 June 2010, para. 865; ICTY Tolimir, TC, 12 December 2012, paras 749, 774. 526 Infra, mns 146-148. 527 ICTY Krstic ´, AC, 19 April 2004, para. 16; ICTY Popovic´ et al., TC, 10 June 2010, para. 865; ICTY Tolimir, TC, 12 December 2012 paras 749, 774, 777–82. 524

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Article II 138–140 tangible impact upon the group’s existence and can hence not automatically be assumed to have relevance in determining substantiality. c. Group as such The vague addendum ‘as such’ demonstrates a compromise formula resorted to by the Sixth Committee to resolve deadlock on the question as to whether the perpetrator’s motives should be constitutive of genocide. In essence, the Committee used the term as a figleaf to hide its incapacity to reach agreement on this issue, and remained divided as to its meaning even after having voted on it.528 Opinions ranged from those who felt that ‘as such’ merely paraphrased the groups-element529 to others who found that the term expressly anchored motives in the definition of genocide530 and even the extreme position that ‘as such’ embodied a motiverequirement which would only be satisfied if members of a group were targeted solely because they belonged to that group.531 In view of such uncertainty, judges and scholars have predominantly chosen not to consider ‘as such’ as an element of motive. Instead, the term’s role within Article II is mostly seen as emphasizing the fact that the prime target of genocide is not the individual, but the protected group ‘as a separate and distinct entity’.532 This protective purpose, however, is already expressed by the specific intent-requirement with great clarity. Effectively, therefore, the term ‘as such’ has been degraded from an element of Article II to an ultimately dispensable interpretive aid.533 140 Remarkably, the prevailing doctrine and jurisprudence have nevertheless held on to motive as an integral element of the crime of genocide. This is commonly expressed by the formula that ‘[t]he victims of the crime must be targeted because of their membership in the protected group, although not necessarily solely because of such membership.’534 Or in other words: The perpetrator’s goal to destroy the 139

528

See: Schabas, Genocide in Int’l Law (2nd ed.), 297–301. UN Doc. A/C.6/SR.76, 126 (Mr. Raafat, Egypt); similarly: A/C.6/SR.77, 130 (Mr. Kaeckenbeeck, Belgium). 530 UN Doc. A/C.6/SR.76, 124–5 (Mr. Pe ´rez Perozo, Venezuela). 531 UN Doc. A/C.6/SR.76, 126–7 (Mr. Morozov, Soviet Union). 532 See: ILC Draft Code (1996), in: Yearbook of the International Law Commission 1996 II (UN Doc. A/51/10), Article 17, para. 7 (45): ‘[T]he intention must be to destroy the group ‘as such’, meaning as a separate and distinct entity, and not merely some individuals because of their membership in a particular group.’ ICJ, Bosnian Genocide case, ICJ Reports 2007, 121 (para. 187): ‘The acts listed in Article II must be done with intent to destroy the group as such in whole or in part. The words ‘as such’ emphasize that intent to destroy the protected group.’ ICTY Sikirica et al., TC, 3 September 2001, para. 89: ‘The evidence must establish that it is the group that has been targeted, and not merely specific individuals within that group. That is the significance of the phrase ‘as such’ in the chapeau.’ ICTR Niyitegeka, AC, 9 July 2004, para. 53: ‘[T]he term ‘as such’ clarifies the specific intent requirement.’ Similarly: Whitaker, Report on Genocide (UN Doc. E/ CN.4/Sub.2/1985/6), para. 38: ‘[C]rimes ... must be directed at the collectivity or at them in their collective character or capacity. Motive, on the other hand, is not mentioned as being relevant.’ 533 In Tolimir (TC, 12 December 2012, para. 747) the ICTY Trial Chamber inadvertently corroborates this finding, holding that ‘[t]he term ‘as such’ reemphasises the crime’s prohibition of the destruction of the protected group itself ....’ (Emphasis added). 534 ICTY Blagojevic ´ and Jokic´, TC, 17 January 2005, para. 669 (emphasis added); ICJ, Bosnian Genocide case, ICJ Reports 2007 121, (para. 187); ICTR Niyitegeka, AC, 9 July 2004, para. 53; ICTR Ntakirutimana, AC, 13 December 2004, paras 304, 363; ICTR Akayesu, TC, 2 September 1998, para. 521; ICTY Krstic´, TC, 2 August 2001, para. 561; Kreß, IntCrimLRev 6 (2006), 498–9; Kreß, MK, § 6 VStGB, mn. 90; Amann, IntCrimLRev 2 (2002), 93, Greenawalt, ColumbiaLRev 99 (1999), 2288. 529

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group, in whole or in part, must have been a driving motive for the acts committed against individual group-members.535 In light of the quasi-elimination of the term ‘as such’, the source of this motive-requirement must be found elsewhere. Within the wording of Article II, the formulation that all acts need to be committed with intent to destroy could serve as a foothold. Despite its wide-reaching acceptance, however, the aforementioned approach 141 features a number of practical and methodical weaknesses. To begin with, the de facto abolition of ‘as-such’ as an element of Article II hardly seems justifiable considering that it pertains to a definition of international criminal law and should hence be governed by the principle of strict construction as enshrined in Article 22 para. 2 ICC-Statute. Moreover, installing a motive-requirement between genocidal intent and the 142 genocidal acts pulls the unfortunate trick of combining the greatest disadvantage of motive-elements with the disuse of their greatest advantage. Leading into the enigmatic sphere of the formation of will, motive-elements in criminal law naturally come with the Achilles’ heel of being notoriously difficult to prove.536 This may not appear, at first sight, to be much of an issue in the present situation. It is clear that a perpetrator who eagerly aspires after the destruction of a protected group and sets about killing members of that group is very likely to have killed because of his genocidal goal. Indeed, the likelihood that the volitional component of intent constitutes the primary motive for the perpetrator’s acts seems to be so manifest that the ad hoc tribunals have even used the term ‘motive’ as being synonymous to genocidal intent on several occasions.537 Upon closer review, however, such a connection of (psychological) causality between the destructive intent and the individual act is anything but convincing because the motivation to attack groupmembers in order to contribute to the group’s destruction may well be superimposed by other motives in a given case.538 For instance, a ge´nocidaire who, searching a house for victims of a targeted group, discovers his wife’s former lover (also a member of the targeted group) and, stung by jealousy, kills him on the spot, cannot be said to have killed because of his intent to destroy the group, even though the destructive intent was latently present during the whole of the incident and would hypothetically also have motivated the culprit to kill if he had not recognized his rival. As a consequence, if Article II actually demanded the genocidal intent to prompt the genocidal act, the perpetrator would go unpunished for genocide in such cases.539 This example demonstrates that it becomes very difficult to establish the required link of motivation whenever indications exist that motives other than 535 See: Satzger, Int’l and Eur. Crim. Law, § 14 mn. 15 (250): ‘Specific intent means, that the perpetrator had a particular motive that was driving the commission of the act. ... In relation to genocide the perpetrator must clearly seek to bring about the destruction of the group.’ 536 In that vein, the ICTY Appeals Chamber in Tadic ´ and Jelisic´ have rightly stressed the considerable ‘inscrutability of motives in criminal law’ (ICTY Tadic´, AC, 15 July 1999, para. 269; ICTY Jelisic´, AC, 5 July 2001, para. 49). 537 See: Behrens, JIntCrimJust 10 (2012) 508, adducing ICTY Akayesu, TC, 2 September 1998 para. 522, ICTR Niyitegeka, AC, 9 July 2004, para. 51; ICTY Krstic´, AC, 22 March 2006, para. 34. 538 See in particular the illuminating study by Behrens, JIntCrimJust 10 (2012), 519–22. 539 Please note that pursuant the present opinion, Article II lit. (a) requires the killing of at least two members of the protected group (supra, mns 61-65). In the given example the killer would hence not be punishable for genocide, even if he had killed another person in the house in pursuit of the goal to destroy the protected group.

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Article II 142–145 the destruction of the group may have played a role. Above all, the accused’s selfserving declaration that the arraigned acts had in concreto been driven by motives other than by his genocidal intent could hardly be disproved. Notably, these evidentiary issues were the chief reason for some delegates at the Sixth Committee to strongly object to the inclusion of motive.540 Further, the prevalent approach that it would be sufficient if the goal of destroying (part of) the group constituted one motive amongst others offers no more than a feigned solution. Especially in cases where other alleged or real motives come in play, it would be even more difficult to establish beyond reasonable doubt that the destructive intent had an actual driving influence on the acts committed. Therefore, any attempt to establish the motiverequirement from Article II in its present form will largely amount to arbitrary speculation. 143 At the same time, this attempt fails to deliver what other Sixth-Committee delegates considered to be the greatest benefit of a motive-element, namely, allowing the exclusion of certain scenarios of mass-destruction which should clearly not constitute genocide, such as the destruction of a group for motives of profit541 or bombing raids against whole groups as a means of defensive warfare.542 For instance, by including motive in the way envisaged above, the defensive (partial) destruction of a highly radicalized religious group during an armed conflict would constitute genocide, as the individual killings are clearly motivated by the intent to destroy that religious group.543 The defensive motive behind the destructive intent itself (the ‘motive behind the motive’544), however, would be left out of consideration, even though it surely sheds a different light on the case. 144 In addition to the foregoing, the desideratum for a stand-alone motive element which creates a link between the destructive intent and the actus reus is quite dubious. First, the court’s procedure will be de facto largely identical, with or without such an element. If such an element were required, and bearing in mind that retrospective views into the culprit’s mind are unfeasible and produce notoriously uncertain results, the court would have no option but to infer the accused’s motivation to act through the existence of an intent to destroy a group on the one hand, and the actual destruction of group-members on the other. Indeed, if both requirements can be established, there is normally a substantial likelihood that the perpetrator attacked group-members because of his intent to destroy the group. If the motive-element were not required, the court would still have to proceed in a like manner and ascertain both the actus reus and the intent to destroy. 145 Second, the motive-element is also not necessary to affirm the character of genocide as a crime against groups. All acts under Article II lit. (a)–(e) must be directed against members of the group and feature the ability to bring destruction to the group, in whole or in part. This is complemented by the intent to destroy the group on the subjective side, as well as the (usually) high probability that the genocidal acts are committed in pursuit of that intent. Taken together, these aspects 540 See, for instance: UN Doc. A/C.6/SR.75, 120 (Mr. Fitzmaurice, United Kingdom); ibid., 61 (Mr. Wikborg, Norway); supra, mn. 27. 541 Ibid. 118 (Mr. Abdoh, Iran). 542 Ibid, 119 (Mr. Reid, New Zealand). 543 Of course, the fact that the killings were ultimately carried out in self-defense would have to be considered on the level of defences. Nevertheless, the offence of genocide would be committed. 544 Behrens, JIntCrimJust 10 (2012), 510–4.

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sufficiently spell out the group-oriented character of genocide and do not require further bolstering by the said motive-element. According to the present view, these inconsistencies could be easily resolved if ‘as 146 such’ was rethought as a motive element. Proceeding from this assumption, due interpretation of the term paves the way to a more sound embedding of the perpetrator’s motives into the crime of genocide. Syntactically, it is clear that ‘as such’ refers to the ‘intent to destroy’ and not to the individual genocidal acts. Therefore, if taken as a motive-element, it only reflects the culprit’s motives for developing his goal to destroy the group and not his reasons for attacking individual group members. In contrast to the prevailing approach, a link of motivation between the genocidal intent and the genocidal act would not be required. Rather, this element would demand the destructive intent to be evoked by motives that build on the group’s national, ethnic, racial or religious features. This reading of ‘as such’ reflects the sense attached to it by the Venezuelian delegate who originally proposed it in the Sixth Committee,545 and has occasionally appeared in judgments of the ICTY and ICTR,546 although without further comment. However, one further refinement is needed to make the motive element function 147 properly. Oftentimes genocide is fuelled by the wish to purge a certain territory from an alien population in order to gain living-space for the people of the aggressor. As in such scenarios it is the perceived alien nature of the victims rather than their specific national, ethnical, racial or religious characteristics which drives the ge´nocidaire, doubts may be raised as to whether the intent to destroy is actually rooted in the groups’ protected features. Uncertainties of this kind can be easily overcome by means of the following test-question: Besides the victimized group, is there any other group under the same rubric as national, ethnical etc. – including the one the attacker belongs to – which the perpetrator would not have intended to destroy under otherwise identical circumstances? If the question can be answered in the affirmative, the perpetrator’s motives were genocidal in nature. From a teleological perspective, this approach allows the exclusion of destructive military operations which are not motivated by the group’s national, ethnical, racial or religious characteristics, and the potential criminality of which can be more accurately assessed in terms of the crime of aggression, crimes against humanity and war crimes. Moreover, provability should be far less of an issue than it is on the basis of the 148 prevailing approach. As mentioned above,547 determining the intent to destroy a group is a difficult task and requires a painstaking and thorough analysis of the perpetrator’s utterances and background, his relations to others, the crime’s context and a number of further factors. Such examination of intent must inevitably go hand in hand with, and often rely on, the determination of the perpetrator’s 545 UN Doc. A/C.6/SR.77, 131 (Mr. Pe ´rez Perozo): ‘The purpose [inter alia of the amendment ‘as such’] was to specify that, for genocide to be committed, a group – for instance, a racial group – must be destroyed qua group.’ 546 ICTR Niyitegeka, AC, 9 July 2004, para. 53: ‘The term ‘as such’ has the effet utile of drawing a clear distinction between mass murder and crimes in which the perpetrator targets a specific group because of its nationality, race, ethnicity or religion.’ ICTY Stakic, TC, 31 July 2003, para. 521, under the rubric ‘The specific intent to destroy the group “as such”’: ‘The group must be targeted because of characteristics peculiar to it ....’ 547 Supra, mn. 105.

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Article II 148 motives. In praxi, therefore, establishing the motives behind the intention to destroy a group will usually not demand extra effort on the part of the court. Furthermore, the factors driving somebody to aim at the destruction of groups are usually deeply engrained in that person’s world view and will thus commonly be more durable and traceable than whatever drove one person to attack another one at a certain point in time. Finally, recalling the debate in the Sixth Committee, the present interpretation has the merit of steering a middle course in that it neither opens up Article II to all motives, nor provides an exhaustive list.

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Article III The following acts shall be punishable: (a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide. Table of Contents: A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. ‘Genocide’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Conspiracy to commit genocide. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Direct and public incitement to commit genocide . . . . . . . . . . . . . . . . . . . . . IV. Attempt to commit genocide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Complicity in genocide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VI. Further modes of responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. ‘Genocide’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Co-perpetration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Commission through another person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. ‘Inchoate Crimes’ affiliated to Genocide. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Conspiracy to commit genocide. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Direct and public incitement to commit genocide . . . . . . . . . . . . . . . . . . . 3. Attempt to commit genocide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Complicity in genocide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Inducement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Assistance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Superior responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. The ‘preventive form’ of superior responsibility (failure to prevent) in particular . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Commission of genocide by omission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VI. ‘Joint criminal enterprise’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

mn. 1 3 3 4 6 9 10 11 14 14 14 18 20 23 23 27 36 40 40 45 46 50 50 52 61 72

A. Introduction Article III lists five modes of conduct by which a person incurs criminal 1 responsibility under the Convention. Aside from ‘genocide proper’, four further punishable acts are cited which are not genocide in the technical sense, but constitute the ‘other acts’ mentioned in Articles IV, V, VI, VII, VIII and IX of the Convention. Three of these (conspiracy, direct and public incitement, attempt) are so-called ‘inchoate’ offences which establish stand-alone criminal responsibility for acts considered to constitute the preliminary stages of genocide and hence allow authorities to intervene before an act of genocide can be carried out.1 The criminalization of these acts serves to reinforce the Convention’s preventive 1

Ohlin, in: Gaeta, Genocide Convention, 187.

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Article III 1–3 purpose.2 Complicity in genocide, by contrast, embodies a form of accessory liability for successfully inducing another to commit genocide or providing assistance in the commission of that crime. 2 Interpreting and finding the appropriate limits of the punishable modes of conduct under Article III leads to a quagmire of uncertainty. At the outset, the drafters quite deliberately couched the definitions in a reasonably open manner so as to allow for their easy accommodation in the majority of domestic legal systems.3 In the 1990s, the Statutes of the ad hoc tribunals incorporated Article III into their provisions on genocide,4 but additionally feature a general norm on criminal conduct, which has resulted in overlaps and serious issues of delimitation.5 By contrast, the ICC-Statute did not include a verbatim rendition of Article III and rather chose to merge the acts under lit. (c)–(e) into a general provision on modes of criminal participation (Article 25 para. 3 ICC-Statute).6 In regards to conspiracy, however, no compromise could be reached, so that this crime has not found adequate reflection in the ICC-Statute. By way of substitute, the delegates of the Rome Conference introduced the enigmatic mode of ‘assistance in a crime committed by a group of persons acting with a common purpose’,7 which bears little resemblance to the concept of conspiracy. Finally, in light of the dynamic evolution of international criminal law in the post-Cold War era, the current content of customary international law on modes of criminal attribution cannot always be ascertained with a satisfactory degree of accuracy. Against this backdrop, this commentary should not be viewed of as solid statement of the law, but rather as an attempt to capture the basic ideas and structures upon which a refined and coherent system of attribution of genocidal acts may be built in the future.

B. Drafting history I. ‘Genocide’ 3 In the light of the tremendous effort taken to shape the crime’s definition in Article II, it is astounding how little thought was given to the potential modes through which ‘genocide proper’ can be committed. A feeble indication can possibly be gleaned from the Secretariat Draft. It distinguished three groups of conduct which should incur criminal liability: ‘genocide’ as defined in Article I of the Draft, acts which ‘are likewise deemed to be crimes of genocide’ (Article II (I) Secretariat Draft) and modes which ‘shall likewise be punishable’ (Article II (II) Secretariat Draft). Notably, the act of ‘wilful participation in acts of genocide in all its forms’, which referred to ‘participation by both principals and accessories’,8 was counted in the last group. This may be taken as indicating that at the beginning of the drafting process, the notion of ‘genocide’ as a mode of criminal conduct was 2

Schabas, Genocide in Int’l Law (2nd ed.), 308. See also: UN Doc. E/AC.25/SR.84, 208 (Mr. Pe´rez Perozo, Venezuela). 3 UN Doc. E/AC.25/SR.84, 211 (Mr. Petren, Sweden; Mr. Kaeckenbeeck, Belgium). 4 Article 4 para. 3 ICTY-Statute; Article 2 para. 3 ICTR-Statute. 5 Most prominently the notion of ‘complicity in genocide’ versus ‘aiding and abetting’ in genocide as provided by Article 7 para. 1 ICTY-Statute/Article 6 para. 1 ICTR-Statute. See for further detail: Greenfield, JCLC 98 (2008), 921–52; Akhavan, JIntCrimJust 3 (2005), 993–5. 6 Similarly: ILC Draft Code (1996) (UN Doc. A/51/10) Article 17. 7 Satzger, Int’l and Eur. Crim. Law, § 13, mn. 63 (241). 8 Secretariat Draft Commentary (UN Doc. E/447).

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meant to be very narrow and only to refer to the direct commission of the crime by a single perpetrator. Stronger evidence exists that the delegates of the Sixth Committee widely acknowledged the concept of ‘co-perpetration’ as a variant of the commission of genocide under Article III lit. (a). During the 87th meeting, the delegate from Luxembourg (Mr. Pescatore) drew upon the difference between complicity and coperpetration in order to support an argument against extending the Convention to complicity in attempted genocide. According to Mr. Pescatore, complicity meant the rendering of accessory or secondary aid, or simply of facilities, to the perpetrator of an offence, whereas a person who rendered essential, principal or indispensable aid was termed a co-perpetrator. In regards to punishment, co-perpetrators were placed on the same footing as the main perpetrator. Therefore, Pescatore argued, even if accomplices in attempted genocide escaped conviction, essential contributors would still be liable as co-perpetrators of attempted genocide.9 Pescatore’s remarks met with some approval. Others voiced some critique but did not speak against the idea of co-perpetration, which indicates a general feeling of acceptance towards that concept.

II. Conspiracy to commit genocide The Secretariat Draft cites ‘conspiracy to commit acts of genocide’ as a punish- 4 able act. The accompanying commentary explains that genocide can hardly be committed on a large scale without any form of agreement.10 The Ad Hoc Committee shared this view, noting that ‘conspiracy to commit genocide must be punished both in view of the gravity of the crime of genocide and of the fact that in practice genocide is a collective crime, presupposing the collaboration of a greater or smaller number of persons.’11 The concept of conspiracy being unknown in many civil law systems, the need for notional clarification arose during the negotiations. Mr. Maktos of the United States, who chaired the Ad Hoc Committee, explained that in the Anglo-Saxon legal tradition ‘conspiracy’ meant an offence consisting of the agreement of two or more persons to effect any unlawful purpose.12 The Soviet and the French delegates (Mr. Morozov and Mr. Ordonneau) expressed their understanding of conspiracy as an agreement to commit a crime, whether or not the parties to the agreement had begun to carry out their design.13 Slightly altering his previous statement, Mr. Maktos then defined conspiracy as the ‘agreement between two or more persons to commit an unlawful act.’14 According to Mr. Raafat of Egypt, conspiracy meant ‘the connivance of several persons to commit a crime, whether the crime was successful or not.’ Notwithstanding such broad consensus concerning the contents of ‘conspiracy’, 5 finding notional equivalents in all authentic languages proved to be more difficult. Venezuela remarked that in Spanish the word ‘conspiracion’ was narrower and meant a conspiracy against the Government, while the English term ‘conspiracy’ 9

UN Doc. E/AC.25/SR.87, 254. Secretariat Draft Commentary (UN Doc. E/447). 11 Ad Hoc Draft Commentary (UN Doc. E/794). 12 UN Doc. E/AC.25/SR.16. 13 UN Doc. E/AC.25/SR.16. 14 UN Doc. E/AC.25/SR.84, 212. 10

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Article III 5, 6 was rendered in Spanish by ‘asociacion’, association for the purpose of committing a crime.15 In the Sixth Committee, Belgium (Mr. Kaeckenbeeck) moved to have the initial term ‘entente’ replaced by ‘complot’, as the former was too vague and unknown in Belgian and French law. Mr. Kaeckenbeeck acknowledged that the word complot (plotting) was more restrictive than the term ‘conspiracy’, but felt that it was impossible to find a perfect equivalent in French.16

III. Direct and public incitement to commit genocide 6 The Secretariat Draft recommended criminalizing not only ‘direct public incitement to any act of genocide, whether the incitement be successful or not’ (Article II (II) para. 2 Secretariat Draft), but also ‘[A]ll forms of public propaganda tending by their systematic and hateful character to provoke genocide, or tending to make it appear as a necessary, legitimate or excusable act’ (Article III Secretariat Draft).17 Against the backdrop of their traditionally expansive understanding of the freedom of speech, the USA soon pushed for the limitation of the proposed provisions. In a governmental comment on the Secretariat Draft, the USA considered that only such ‘propaganda’ should be punishable as is constituent of ‘a clear and present danger’ for the protected group. However in such instances, it was further argued, ‘propaganda’ takes on the character of incitement and is sufficiently covered by the previous article, so that Article III should be deleted. In addition, the USA proposed that direct and public incitement only be criminalized when taking place ‘under circumstances which may reasonably result in the commission of acts of genocide.’18 The extreme counter-position was taken by the delegate of Soviet Union in the Ad Hoc Committee, who strongly favoured the criminalization of any sort of propaganda aimed at stirring up hatred against protected groups and designed to provoke genocidal acts.19 The Ad Hoc Committee reached a compromise on the basis of a French suggestion that only direct incitement ought to be punishable,20 and a more expansive proposition by the Venezuelan delegate (Mr. Pe´rez-Perozo) who felt that incitement both in public and in private should be criminal, irrespective of ‘whether the incitement be successful or not.’21 The final version of 15

UN Doc. E/AC.25/SR.16 (Mr. Pe´rez Perozo, Venezuela). UN Doc. E/AC.25/SR.84, 207, 211 (Mr. Kaeckenbeeck, Belgium). In French and Belgian penal law, the crime of ‘complot’ constitutes an inchoate crime against the state’s government or security. In French law, the agreement alone is not sufficient but has to be manifested in the form of certain overt acts. In Belgian criminal law, such manifestation merely constitutes an aggravating factor. See: French Penal Code, Article 412–2: ‘Constitue un complot la re´solution arreˆte´e entre plusieurs personnes de commettre un attentat [i. e. actes de violence de nature a` mettre en pe´ril les institutions de la Re´publique ou a` porter atteinte a` l’inte´grite´ du territoire national – 412-1] lorsque cette re´solution est concre´tise´e par un ou plusieurs actes mate´riels.’ Belgian Penal Code, Article 106: ‘Le complot contre la vie ou contre la personne du Roi sera puni de quinze ans a` vingt ans de re´clusion, s’il a e´te´ suivi d’un acte commis pour en pre´parer l’exe´cution, et de dix ans a` quinze ans de la meˆme peine, dans le cas contraire.’ 17 Secretariat Draft (UN Doc. E/447). 18 UN Doc. E/623. 19 UN Doc. E/AC.25/7, Basic Principle No. VI: ‘The convention should make it a punishable offence to engage in any form of propaganda for genocide (the press, radio, cinema, etc.) aimed at inciting racial, national or religious enmity or hatred and also designed to provoke the commission of acts of genocide.’ 20 UN Doc. E/AC.25/SR 15; E/AC.25/SR 16. 21 UN Doc. E/AC.25/SR 16. 16

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the Ad Hoc Committee’s draft hence read: ‘Direct incitement in public or in private to commit genocide whether such incitement be successful or not.’ In the Sixth Committee this controversy persisted, with the USA then attempting 7 to procure the complete deletion of incitement to commit genocide.22 After lengthy discussions, a majority agreed to a formulation which in essence consisted of the deletion of the Venezuelan addenda. In regards to incitement ‘in private’, Iran submitted that ‘[i]ncitement in private could have no influence on the perpetration of the crime of genocide; it therefore presented no danger’.23 In his response, Mr. Pe´rez-Perozo held his position, stating that ‘[i]ncitement could be carried out in public, but could also take place in private, through individual consultation, by letter or even by telephone.’ In relation to the phrase ‘whether such incitement be successful or not’, Belgium argued that its deletion would leave it for each member state to decide whether incitement had to be successful to be punishable. However, Iran24 and Uruguay25 pointed out that there would be little point in requiring the incitement to be successful, as incitement would then become a superfluous subset of complicity under Article III lit. (e). Relatively little can be gleaned from the Committee’s negotiations as to the 8 precise meaning of ‘directness’ of incitement. Invoking the Nazi atrocities, however, Mr. Lachs of Poland gave an example of indirect incitement, namely ‘play[ing] skilfully on mob psychology by casting suspicion on certain groups, by insinuating that they were responsible for economic or other difficulties, in order to create an atmosphere favourable to the perpetration of the crime.’26

IV. Attempt to commit genocide The Secretariat Draft Commentary did not comment on the notion of attempt 9 and the underlying reasons for its inclusion. Likewise, in the subsequent discussions in the Ad Hoc and Sixth Committees only sporadic and scarce utterances on the subject can be noted. In the Ad Hoc Committee, Mr. Rudzinski of Poland felt that ‘attempt’ implied commencement of execution while ‘preparatory acts’ merely indicated securing the means of executing a plan which would be revealed only after the ‘attempt’ had been made.27 This was indirectly supported by Venezuela (Mr. Pe´rez Perozo), stating that in Latin American countries generally, preparation of a crime in itself was not punishable unless followed by the beginnings of commission and thus becoming an attempt.28 V. Complicity in genocide In principle, the punishability of complicity in genocide was uncontested during 10 the whole of the drafting process. GA resolution 96(I) had paved the way for its inclusion, circumscribing genocide as a crime under international law for the commission of which principals and accomplices are punishable. The Secretariat 22

UN UN 24 UN 25 UN 26 UN 27 UN 28 UN 23

Doc. A/C.6/SR.84, 213; A/C.6/SR.85, 224 (Mr. Maktos; United States). Doc. A/C.6/SR.84, 214 (Mr. Abdoh, Iran). Doc. A/C.6/SR.84, 214 (Mr. Abdoh, Iran). Doc. A/C.6/SR.85, 222 (Mr. Manini y Rı´os, Uruguay). Doc. A/C.6/SR.87, 251 (Mr. Lachs, Poland). Doc. E/AC.25/SR.6. Doc. A/C.6/SR.17.

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Article III 10 Draft made implicit mention of complicity as a subset of ‘wilful participation in acts of genocide’ (Article II (II) 1 Secretariat Draft). Moreover, all the drafts submitted by the USA and USSR, France and China included complicity as punishable act.29 The Ad Hoc Committee then unanimously adopted the proposal to include ‘complicity in any of the acts enumerated in this article.’30 In agreeing to the inclusion of ‘complicity’ in the provision, the United States representative (Mr. Maktos) stated that he understood it to refer to ‘accessoryship’ before and after the fact and to aiding and abetting in the commission of crimes enumerated in Article IV of the draft (the predecessor of Article III of the Convention).31 Regarding the concept of ‘complicity after the fact’, Venezuela took a similar stance, feeling that complicity ‘should apply equally to acts carried out before the crime was committed and to those performed subsequently, that is, to acts assisting the culprits to escape the punishment they deserved.’32 In the Sixth Committee, a noteworthy controversy arose when Belgium proposed altering the Ad Hoc Committee’s wording to ‘complicity in crimes of genocide’.33 Similarly, the United Kingdom submitted that the phrase be substituted for ‘deliberate complicity in any act of genocide.’34 Both recommendations imply a considerable reduction of the scope of complicity. In the former text, complicity applied to all punishable acts, including the inchoate crimes of conspiracy, incitement and attempt. By contrast, according to these proposals only complicity in ‘genocide proper’ would be punishable. A number of arguments were put forward in support of the Belgian/British move. Mr. Pescatore of Luxembourg elaborated that the concept of incitement to commit genocide was at that time particularly unclear, and that including provisions concerning the punishment for complicity in incitement would merely add another, vaguer concept.35 In regards to complicity in attempt, Mr. Pescatore called for a differentiation between co-perpetrators and accomplices. As the former have rendered either essential, principal or indispensable aid in the commission of the crime, they may be punished on the same ground as the main perpetrators (here: attempt); whereas mere accomplices should escape conviction.36 Mr. Pescatore further opined that complicity in attempt would be particularly difficult to prove.37 Endorsing this view, the French delegate (Mr. Chaumont) also submitted that the broad enumeration of acts under Article II allowed for the punishment of accom29 The USA (draft of 30 September 1947, UN Doc. E/623, Article III) proposed that ‘[i]t shall be unlawful and punishable to commit genocide or to wilfully participate in an act of genocide’. The USSR (UN Doc. E/AC.25/9, Principle V) suggested the punishability of the following acts: ‘Deliberated participation in all its forms … and complicity or other forms of conspiracy for the commission of genocide’. France (draft of 15 February 1948, UN Doc. E/Add. 1, Article I) proposed that ‘[i]ts authors [of genocide] or their accomplices shall be responsible before international Justice’, and that ‘[a]ny attempt, provocation or instigation to commit genocide is also a crime’. China (draft of 16 April 1948, UN Doc. E/AC.25/9, Article II) submitted that ‘[f]or the commission of genocide, principals and accomplices, whether they are public officials or private individuals shall be punishable’. 30 UN Doc. E/AC.25/SR.17. 31 Ad Hoc Draft Commentary (UN Doc. E/794). 32 UN Doc. E/AC.25/SR.84, 209 (Mr. Pe ´rez Perozo). 33 UN Doc. A/C.6/217. 34 UN Doc. A/C.6/236. 35 UN Doc. A/AC.25/SR. 87, 254. 36 UN Doc. A/AC.25/SR. 87, 254. 37 UN Doc. A/AC.25/SR. 87, 255.

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plices in attempted killings, whereby victims had suffered wounds, as accomplices in the causing of serious bodily harm.38 Further comments ranged from complete agreement39 to polite reservation40 and even open rejection41 of the proposals. Finally, the UK version (without the word ‘deliberate’) was taken to vote and adopted by 25 votes to 14, with 3 abstentions.42

VI. Further modes of responsibility During the earlier stages of the drafting the creation of a number of inchoate 11 crimes was contemplated in order to specifically cover the phase of preparation. The Secretariat Draft proposed the criminalization of the following preparatory acts: (a) studies and research for the purpose of developing the technique of genocide; (b) setting up of installations, manufacturing, obtaining, possessing or supplying of articles or substances with the knowledge that they are intended for genocide; and (c) issuing instructions or orders, and distributing tasks with a view to committing genocide. Addressing the reasons for fixing the point of punishability to such an early stage, the Draft Commentary cited the gravity and irreparability of the crime as well as the fact that a crime of such proportion normally requires substantial preparation43 [so that it may be effectively averted by repressing preparative acts]. During the ensuing discussions in the Ad Hoc Committee, the understanding 12 gained ground that acts of preparation were sufficiently covered by the crime of ‘conspiracy’.44 The Committee was not ignorant towards the fact that from a legal point of view, ‘conspiracy’ included only preparatory acts committed by two or more persons,45 but concluded that in praxi it was ‘very difficult to conceive of a single individual building crematoriums or undertaking research with a view to committing genocide.’46 When taken to vote, the inclusion of the concept of preparation for the crime of genocide was defeated by four votes to two, with one delegate abstaining.47 In the Sixth Committee, the Soviet delegation made a further proposal for the inclusion of preparatory acts48 which was again rejected by a clear vote of 29 to 11 with 5 abstentions.49 At the time of drafting, the special mode of ‘command’ or ‘superior responsi- 13 bility’ had already begun to take shape following the seminal Yamashita-judg38

UN Doc. A/AC.25/SR. 87, 256. UN Doc. A/AC.25/SR. 87, 256 (Mr. Houard, Belgium); 258 (Mr. Abdoh, Iran). 40 UN Doc. A/AC.25/SR. 87, 257 (Mr. Raafat, Egypt). 41 UN Doc. A/AC.25/SR. 87, 256 (Mr. Bartos, Yugoslavia); 258 (Mr. Morozov, Soviet Union). 42 UN Doc. A/AC.25/SR. 87, 259. 43 Secretariat Draft Commentary (UN Doc. E/447). 44 UN Doc. E/AC.25/SR.6 (Mr. Lin Mousheng, China); UN Doc. E/A.25/SR.17 (Mr. Ordonneau, France); ibid. (Mr. Pe´rez Perozo, Venezuela), ibid. (Mr. Azkoul, Lebanon), ibid. (Mr. Lin Mousheng, China). 45 See the remark of Mr. Rudzinski (Poland), UN Doc. E/A.25/SR.17. 46 UN Doc. E/AC.25/SR.17 (Mr. Ordonneau, France). 47 UN Doc. E/AC.25/SR.17. 48 UN Doc. A/C.6/215/Rev.1; UN Doc. E/AC.25/SR.87, 234 (Mr. Morozov, Soviet Union). The move was particularly supported by the Netherlands (Mr. de Beus, UN Doc. E/AC.25/SR.87, 234), Yugoslavia (Mr. Bartos, ibid., 235), Sweden (Mr. Petren, ibid., 236) and Poland (Mr. Lachs, ibid., 237–8). 49 UN Doc. E/AC.25/SR.87, 244. 39

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Article III 13–16 ments of 1945 and 194650, and the Consultative Council of Jewish Organizations had thus suggested its inclusion.51 Nevertheless, it was not considered during the consultations that followed.

C. Interpretation I. Article III lit. (a) – Genocide 1. General remarks At first sight, ‘genocide’ appears the least ambiguous of the acts punishable under Article III, as it is meticulously defined in Article II. However, this only holds true in cases where a perpetrator carries out the genocidal acts defined under Article II lit. (a)-(e) personally. Beyond that, recourse must be made to more intricate modes of attribution. As genocide usually consists of large-scale campaigns, offences under Article II will often occur as a result of concerted action by a plurality of persons. In such situations, liability for genocide can only be incurred if the contributive conduct of all persons concerned in the execution of the unlawful act can be drawn together and attributed to one or several persons as perpetrators of genocide. In abstract terms, differentiation can be made between ‘horizontal’ and ‘vertical’ modes of attribution. 15 Attribution of conduct on a horizontal level requires a certain degree of parity and coordination of the persons involved, who act together in pursuance of a common plan. In terms of legal effects, the distinctive feature of concepts of horizontal attribution is that all contributory acts are mutually attributed to all participants. Regarding the crime of genocide in particular, the desideratum for concepts of horizontal attribution is clear. Otherwise, for instance, two persons each of whom kills one member of a protected group pursuant to a common plan and with the intent to destroy that group, would not be punishable under Article III lit. (a), as the act of Article II lit. (a) (according to the present view52) requires the killing of at least two group-members. 16 ‘Vertical’ modes of criminal attribution are characterized by a preponderant or dominating role of one participant within a criminal operation. In contrast to concepts of horizontal attribution, vertical attribution runs ‘bottom-up’ from the inferior participants to the leading figure and not vice-versa. In relation to the crime of genocide, recourse to vertical attribution is of eminent importance, as the following may illustrate: According to the clear wording of Articles III lit. (a), II, the commission of genocide requires a person to act with a specific ‘intent to destroy’. Such intent requires first a volitional element, according to which the destruction of the group, in whole or in part, must be the offender’s goal.53 In addition, an element of knowledge is needed, demanding the perpetrator’s awareness that (a) the given scenario brings about a realistic chance of leading to the full or partial destruction of a protected group, and (b) that his act may have a 14

50 Yamashita-Trial, United States Military Commission, UNWCC-Series Vol. IV, 1–36; Yamashita-Trial, United States Supreme Court, UNWCC-Series Vol. IV., 37–75. 51 UN Doc. E/C.2/49, proposal No. 3: ‘Rulers and public officials shall also be liable to punishment if they fail to employ every lawful means to prevent and punish offenses under this Convention.’ 52 Supra Article II, mns 61–65. 53 Supra Article II, mn. 104.

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contributive effect on the realisation of the destructive end.54 In many genocidal scenarios, the impetus for genocidal acts runs from a higher hierarchical level of strategists and masterminds down to the physical perpetrators at the scene, who may not share the destructive goal of their superiors. In such cases, a large regulatory gap opens up: For want of genocidal intent, those who physically perform acts under Article II could at best be punishable for complicity in genocide, and even this only if the mastermind behind them qualified as a principal offender. As the latter does not personally carry out the acts incriminated under Article II, however, his position as a principal of the crime cannot be assumed lightly, but presupposes that acts committed by inferior on-site executors can be attributed to him. The foregoing demonstrates that non-attribution of individual acts to superior 17 operatives or even-levelled co-participants would run directly counter the Convention’s purposes of effective protection and punishment. Nevertheless, the Convention remains vague as to the precise rules of attribution and hence signals that while the attribution of acts from physical offenders to high-level functionaries is indispensible for combating the crime of genocide, it should in principle rest with the state parties’ domestic legislation to decide which rules should govern such attribution. Particularly from today’s perspective, an exception must be made with respect to rules of criminal attribution which have acquired binding force as customary international law (for example, co-perpetration55 and superior responsibility56) or as a general rule of international law (arguably including commission through another person57 or commission by omission58). Aside from that, modes of imputation developed by the international jurisprudence but which have not (yet) evolved into legally binding rules may be drawn upon as useful guidelines for concretising the obligation to punish contained in the Convention. 2. Co-perpetration The central mode of ‘horizontal’ criminal imputation is that of co-perpetration, 18 as enshrined in Article 25 para. 3 lit. (a) ICC-Statute.59 According to this provision, ‘a person shall be criminally responsible and liable for punishment for [genocide], if that person … commits [genocide] … jointly with another ….’ On the objective side, this mode of conduct first demands the existence of an agreement or plan between at least two individuals to complete at least one genocidal act under Article II lit. (a)–(e). It is not necessary that the plan be specifically directed at the completion of such acts. Instead, it suffices that its implementation embodies a sufficient risk that, if events follow their ordinary 54

Supra Article II, mn. 114. Werle, Int’l Criminal Law (2nd ed.), para. 454; ICTY Tadic´, AC, 15 July 1999, paras 194–201 (in relation to JCE I). 56 Werle, Int’l Criminal Law (2nd ed.), para. 500; ICTY Mucic ´ et al., AC, 20 February 2001, para. 195. 57 See: Werle, Int’l Criminal Law (2nd ed.), para. 473; Ambos, Der Allgemeine Teil des Vo¨lkerstrafrechts, 568–73. 58 Duttwiler, ICLR 6 (2006), 60–1; Berster, Die vo ¨ lkerstrafrechtliche Unterlassungsverantwortlichkeit, 106–11. 59 ICC Lubanga, PTC, 29 January 2007, para. 325; ICC Katanga and Chui, PTC, 30 September 2008, paras 520–6; ICC Lubanga, TC, 14 March 2012, paras 985–8. For a different opinion, see: ICC Chui, Concurring Opinion of Judge Christine Van den Wyngaert, 18 December 2012, paras 31–57. 55

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Article III 18, 19 course, an act of genocide would occur.60 Secondly, each co-perpetrator must have made a significant contribution to the completion of the crime. In its jurisprudence, the ICC has drawn upon the ‘control over the crime’-approach in order to define the required threshold of contribution. On this basis, the Lubanga Trial Chamber required the offence to be the result of the perpetrators’ combined and coordinated contributions by which the control over the crime is in the hands of the collective.61 This underlying idea of collective control shapes the prerequisites of the contributions in the commission of the crime in a twofold manner: On one hand, it is unnecessary that the contribution of each coperpetrator, taken alone, would also have caused the crime.62 On the other hand, each contribution must be ‘essential’ for the completion of the crime, as only in this instance would each participant hold a sufficient share of the joint control. For determining ‘essentiality’, the Lubanga Pre-Trial Chamber found it vital that each co-perpetrator have the power to frustrate the commission of the crime by not performing his task.63 Additionally, the ICC Trial Chamber considered that co-perpetration involves a form of principal liability and should hence require a more significant contribution than modes of accessory liability. As it is well settled in international case law that complicity must have had a ‘substantial’ effect on the commission of the crime,64 co-perpetration calls for an even higher degree of influence, and an ‘essential’ effect would qualify as such.65 19 Aside from semantic subtleties, the ‘frustration-test’ has contributed considerably to concretising the notion of ‘collective control’. However, it fails to consider the pivotal question as to whether a contribution on which the commission of the crime ‘stands or falls’ invariably conveys a share of control over the very commission of the crime. In order to assess this, it is helpful to look at the archetypal constellation of a person who – well prior to the point of commission – provides the perpetrator with a gun without which the crime would have been impossible. In such cases, the aider plays a dominant role at the stage of preparation of the crime. At the very moment he hands over the weapon, however, he hands over the reins, and completely loses control of the following course of events, including the crucial phase of the commission of the crime. It appears difficult, in this example, to speak of the ‘joint’ or ‘collective control’ of both participants, even though the ‘frustration-test’ would affirm co-perpetration in such cases. It is submitted here that (collective) control of the crime means control over the phase of commission, i. e. over the conduct necessary to bring about the completion of the crime. Accordingly, contributions in stages prior to commission – indispensable as they may be – should be deemed incapable of making the contributor a co-perpetrator, and should hence only be considered in terms of accessory liability.66 60

See: ICC Lubanga, TC, 14 March 2012, para. 984, with respect to the crime of conscription, enlistment or use of children within armed forces (Article 8 para. 2 lit. (e) (vii) ICC-Statute). 61 ICC Lubanga, TC, 14 March 2012, para. 994. 62 ICC Lubanga, TC, 14 March 2012, para. 994. 63 ICC Lubanga, PTC, 29 January 2007, para. 347. 64 ICTY Furundz ˇija, TC, 10 December 1998, para. 235; ICTR Kayishema and Ruzindana, AC, 1 June 2001, para. 198; ICTY Blasˇkic´, AC, 29 July 2004, para. 46. 65 ICC Lubanga, TC, 14 March 2012, para. 997. 66 For the analogous debate in German penal law, see: Roxin, Strafrecht Allgemeiner Teil, Vol. II, § 25 mns 198–210.

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3. Commission through another person Commission through another person constitutes the central mode of ‘vertical’ 20 criminal attribution. Although anchored in all of the world’s major legal systems,67 the concept is relatively recent on the level of international criminal law and first found expression in Article 25 para. 3 lit. (a) ICC-Statute. On the basis of the control of crime approach, this mode of perpetration requires the perpetrator (‘perpetrator by means’68 or ‘indirect perpetrator’69) to hold a controlling position over the acts of the immediate executor, allowing him to use the latter as a tool or instrument in his criminal plan. In regards to such control, two different types can be discerned. On the one hand, indirect perpetratorship can be based on control over the will of those who carry out the objective elements of the offence.70 This type may either arise in situations where the perpetrator engenders or takes advantage of the executor’s unawareness of crucial facts (e. g., a local person, acting with intent to destroy a certain ethnicity, deceives a military pioneers unit into believing that detonating a reservoir dam would not put civilian life at risk), or where the executor deliberately or compulsorily submits to the perpetrator’s dominant position (e. g., a military subordinate carrying out ordered acts of genocide in fear of disciplinary measures). On the other hand, as has been confirmed by the ICC Pre-Trial Chamber,71 a 21 perpetrator may also commit a crime through another by means of ‘control over an organisation’ (Organisationsherrschaft). This specific type builds on the idea that the typical features of an organized hierarchical apparatus of power allow its leaders to instrumentalize subordinates as fungible ‘cogs in a big wheel’. Within such systemic structures of power, the refusal of an individual subordinate to carry out genocidal orders would normally not compromise their execution, as other subordinates will readily step in.72 Irrespective of actual control over each subordinate’s will, therefore, instigators within organizational structures exercise sufficient control as to be liable as indirect perpetrators. In an addendum, Article 25 para. 3 lit. (a) ICC-Statute clarifies that the criminal 22 responsibility of the person executing the crime does not affect the liability of the indirect perpetrator. This lays out the doctrine known as ‘perpetrator behind the perpetrator’ on the level of international criminal law.73

II. ‘Inchoate Crimes’ affiliated to Genocide 1. Conspiracy to commit genocide In the jurisprudence of the ad hoc tribunals, the crime of conspiracy to commit 23 genocide is defined as ‘an agreement between two or more persons to commit the 67 ICC Lubanga, PTC, 29 January 2007, para. 332; ICC Katanga and Chui, PTC, 30 September 2008, para. 495; Fletcher, Rethinking Criminal Law, 639; Werle, Int’l Criminal Law (2nd ed.), para. 473; Ambos, Der Allgemeine Teil des Vo¨lkerstrafrechts, 568–73. 68 ICC Katanga and Chui, PTC, 30 September 2008, para. 497. 69 Satzger, Int’l and Eur. Crim. Law, § 13, mn. 59 (239). 70 ICC Lubanga, PTC, 29 January 2007, para. 332; ICC Katanga and Chui, PTC, 30 September 2008, para. 488; Werle, Int’l Criminal Law (2nd ed.), para. 473. 71 ICC Katanga and Chui, PTC, 30 September 2008, paras 500–10. 72 ICC Katanga and Chui, PTC, 30 September 2008, paras 515–6. 73 ICC Katanga and Chui, PTC, 30 September 2008, para. 496; Werle, Int’l Criminal Law (2nd ed.), para. 473.

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Article III 23–25 crime of genocide.’74 The crime is completed at the moment an agreement is reached that the crime of genocide shall be committed.75 Fruitless negotiations are not punishable. As here conspiracy constitutes an inchoate crime, the subsequent commission of genocide is not necessary. The object of the agreement must be the commission of genocide as set out by Article III lit. (a). Conspiring to commit any of the inchoate crimes under Article III lit. (b)-(d) or complicity to genocide according to Article III lit. (e) would not suffice. Third parties can join the conspiracy at any time prior to the execution of the crime.76 24 As regards the mental side, the perpetrator must first have intent and knowledge of the act of entering into an agreement to commit genocide. In addition, the ICTR jurisprudence unanimously holds that the perpetrator must also possess the specific intent required by the crime of genocide itself.77 This holds true for the volitional component of genocidal intent, i. e. that the full or partial destruction of a group is the perpetrator’s goal.78 Regarding its cognitive component, however, further refinement is required. As elucidated above, the cognitive aspect of genocidal intent presupposes the offender’s awareness that (a) the given scenario implies a realistic chance of leading to the full or partial destruction of a protected group, and (b) that his act may have a contributive effect towards the destructive goal.79 This mental element essentially flows from the necessity of embedding single genocidal acts into an ongoing or emerging large-scale genocidal campaign. Only this (subjective) link to the macro-criminal background translates ordinary crimes into acts of genocide.80 In the case of conspiracy, the situation is typically different, as this crime seeks to abort the genocidal plot in its earliest stages, prior to the beginnings of collective action against a protected group. This underlying objective would be largely undermined if the knowledge standard of the principal offence were lightly transposed into the crime of conspiracy. Instead, a lower standard should be applied. According to the view presented here, a more suitable standard would require the conspirer’s awareness that (a) the possibility exists of a future development which could lead to the full or partial destruction of a protected group, and (b) that his agreed act may contribute to that destruction. 25 A difficult question is whether a conspirator may evade punishment by withdrawing from the conspiracy. The crime’s structure seems to militate against it, as remorseful acts after the completion of the crime are normally considered – if at all – at the sentencing stage, but not in relation to the incurrence of criminal responsibility. International jurisprudence, however, has at times contemplated such a possibility. Merging material and evidentiary aspects, an ICTY Trial Chamber held that ‘withdrawal from the conspiracy does not exonerate a conspirator, unless he produces affirmative and contemporaneous evidence of his with74 ICTY Tolimir, TC, 12 December 2012, para. 785; ICTY Popovic ´ et al., TC, 10 June 2010, para. 868; ICTR Musema, TC, 27 January 2000, para. 191; ICTR Nahimana et al., AC, 28 November 2007; para. 894; ICTR Bagosora et al., TC, 18 December 2008, para. 2087; ICTR Kajelijeli, TC, 1 December 2003, para. 787. 75 Cassese/Gaeta et al., Cassese’s Int’l Criminal Law (3rd ed.), 202. 76 ICTY Popovic ´ et al, TC, 10 June 2010, para. 876. 77 ICTR Musema, TC, 27 January 2000, para. 192; Nahimana et al., AC, 28 November 2007, para. 894. 78 Supra, Article II, mn. 104. 79 Supra, Article II, mn. 114. 80 Supra, Article II, mn. 107.

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drawal.’81 In fact, two points may be adduced in support of such a specific defence. On the one hand, it is important to recall that prevention is the foremost objective of the inchoate crimes of genocide. Against this backdrop, it is appropriate to pave a way to impunity for every conspirator who deliberately chooses to leave the plot. On the other hand, Article 25 para. 3 lit. (f) ICC-Statute provides that a person will be exonerated if, after having attempted an international crime, he abandons the effort to commit the crime or otherwise prevents its completion, provided that he completely and voluntarily gives up the criminal purpose. As conspiracy and attempt bear some resemblance qua inchoate crimes, extending the underlying idea of Article 25 para. 3 lit. (f) ICC-Statute to conspiracy seems worthy of consideration. Which rules precisely should then govern such a defence? At a first glance, the 26 analogous application of Article 25 para. 3 lit. (f) ICC-Statute would seem to suggest itself. However, due to the different natures of the crimes, the application of a slightly lower standard would be more appropriate. The specific danger attached to conspiracy and the underlying reason for its criminal nature lies in the psychologically binding effect of ‘agreements’ in social intercourse. The principle of ‘pacta sunt servanda’ is so deeply ingrained in the human mind that in many instances the psychological effort of breaking an agreement may be greater than that of fulfilling it, even when the actions involved are against one’s convictions.82 This specific danger is dispersed at the moment a conspirator overtly retreats from the given promise, as this unties the mental bond between the conspirators and potentially even instigates others to follow his example. In contrast to Article 25 para. 3 lit. (f) ICC-Statute, therefore, prevention of completion should not be required. 2. Direct and public incitement to commit genocide Unlike ‘inducement’ and other forms of complicity,83 the crime of incitement to 27 commit genocide qualifies as an inchoate crime and is therefore punishable whether or not genocide is actually perpetrated as result of the incitement.84 The actus reus of this crime requires the offender to incite others to commit genocide, and to do so directly and publicly. Each of these three elements calls for clarification. Surprisingly, in international case law and legal writing, comparably little atten- 28 tion has been afforded to the central term ‘incitement’. At times it has been circumscribed as any ‘appeal’ commit an act of genocide.85 In addition, the ICTR Appeals Chamber repeatedly observed that ‘the crime is completed as soon as the discourse in question is uttered.’86 Drawing a comparison to complicity, Werle defines incitement as ‘inducing – or even merely attempting to induce – others to commit genocide.’87 These statements indicate that the act of incitement is generally 81

ICTY Tolimir, TC, 12 December 2012, para. 785. See: Schu¨nemann, in: Leipziger Kommentar, § 30 mn. 3 (in relation to the equivalent of ‘conspiracy’ in German penal law). 83 Infra, mn. 42. 84 Cassese/Gaeta et al., Cassese’s Int’l Criminal Law (3rd ed.), 203. 85 ICTR Nzabonimana, TC, 31 May 2012, para. 1752 (emphasis added); likewise: ICTR Nahimana et al., AC, 28 November 2007, para. 692. 86 ICTR Nahimana et al., AC, 28 November 2007, para. 723; ICTR Nzabonimana, TC, 31 May 2012, para. 1752. Similarly, Schabas (Genocide in Int’l Law (2nd ed.), 328) points at the ICTR’s reference to the common law meaning of ‘incitement’, involving ‘encouraging or persuading another to commit an offence’. 87 Werle, Int’l Criminal Law (2nd ed.), para. 767. 82

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Article III 28–30 not deemed to require having any particular effect on the recipients of the perpetrator’s pronouncements. In view of the term’s ordinary meaning, however, an alternative reading may also be put forward. A synonym of ‘encouraging or stirring up’88 in everyday speech, ‘incitement’ may well be seen as requiring some sort of reaction from the persons addressed, and, in particular, their taking the decision to participate in a future collective genocidal action. The accuracy of this restrictive understanding is supported by the widespread finding that the notion of ‘incitement’ is largely identical to ‘inducement’,89 the latter of which clearly requiring that a decision to accomplish an act must have been evoked in another person.90 Furthermore, this reduction of the norm’s scope may assist in accommodating the difference between those who deem paragraph (c) as an overly harsh infraction upon the right to free expression of opinion,91 and the legitimate interest of the Convention to avert a genocidal course of action at a timely stage. Moreover, the underlying reason for the punishability of public incitement must be taken into consideration, specifically the danger arising from the fact that inflammatory utterances are directed at an indeterminate, unidentifiable plurality of persons whose reactions are beyond the control of the person making such utterances.92 A person who intends to incite genocide but whose ideas are entirely inapt for winning the support of his listeners does in fact not pose such a risk.93 Finally, in practical terms, the proposed approach would be unlikely to result in a significant reduction of the crime’s scope. While it would have be proven that at least one member of the audience was actually prompted to take the decision to commit acts of genocide, that fact could normally be easily inferred from the circumstances and the subsequent course of events. 29 The incitement must call for the ‘commission of genocide’. Appeals for acts which would amount to mere complicity in genocide are not sufficient. Rather, the perpetrator’s declaration must call for the realization of all material and mental elements of the crime of genocide as set out by Article II. On the basis of the present understanding of this article,94 in abstracto, the perpetrator’s utterance would have to express the following request: ‘[Readers or listeners!] I beg you to share the goal of destroying a certain group (in whole or in part) on the grounds of its national, ethnic, racial or religious characteristics, and to commit an act or acts pursuant to Article II lit. (a)–(e)!’ 30 A large consensus exists that the perpetrator’s inciting declaration may be either express or implicit.95 In fact, history yields a remarkable account of cases were perpetrators did not explicitly call for the annihilation of groups, but resorted to 88

Oxford English Dictionary, 884. ICTR Kalimanzira, TC, 22 June 2009, para. 511: ‘The term ‘incitement’ is synonymous with ‘instigation’, ‘provocation’, and ‘encouragement’ ….’ Similarly: Cassese/Gaeta et al., Cassese’s Int’l Criminal Law (3rd ed.), 203; Werle, Int’l Criminal Law (2nd ed.), para. 767; Schabas, Genocide in Int’l Law (2nd ed.), 319 (‘incitement in private is subsumed within the act of complicity’). 90 Infra, mn. 45. 91 Supra, mns 6-7. 92 Werle, Int’l Criminal Law (2nd ed.), para. 768. 93 See also: Benesch (VirginiaJIL 48 (2008), 494) finding it ‘absurd to consider a speech incitement to genocide when there is no reasonable chance that it will succeed in actually inciting genocide’, and proposing a ‘reasonably possible consequences’ test (ibid., 519–25). 94 Supra, Article II, mn. 1. 95 Werle, Int’l Criminal Law (2nd ed.), para. 771. 89

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circumscriptions and metaphorical or euphemistic terms instead, partly to make their cause palatable to the audience, partly to disguise their intentions in regard of foreign observers. Such was the case in Rwanda, where in radio announcements the inciters employed the coded term ‘cockroaches’ to refer to Tutsi as the targets of the planned massacres.96 According to existing international case law, the discourse must be interpreted from the perspective of the offender’s intended audience, in due consideration of the specific context, in particular the recipients’ cultural background, the nuances of the employed language and the political and community affiliation of the inciter.97 In whichever form the incitement appears, it must be ‘direct’. This term involves three aspects. Firstly, the incitement must not consist of an ‘indirect suggestion’98, meaning that it must not be left to the addressee to conclude whether or not a group should be destroyed by means contained in Article II lit. (a)–(e). As a consequence, a line must be drawn between incitement to commit genocide and mere ‘hate-speeches’, which aim to spread contempt or anger against a group but leave it to the recipient to decide if action should be taken. Secondly, the term ‘directness’ also involves an aspect of clarity. A discourse which remains ambiguous even after being subjected to interpretation in accordance with the aforementioned principles therefore does not qualify as incitement to commit genocide.99 Thirdly, proximity of time must be read into the term ‘directness’. In the accompanying commentary to its Draft Code of 1996, the ILC explained that ‘[t]he element of direct incitement requires specifically urging another individual to take immediate criminal action rather than merely making a vague or indirect suggestion.’100 Directness would thus also require that the author called for immediate or at least timely action against the protected group. Appeals for genocidal action at a future time would hence not suffice, however clear they may be. Incitement is conducted in a ‘public’ manner when the inciting utterances are expressed before or made available to an indeterminate plurality of persons.101 In contrast, a message addressed to a set of individualizable persons would not qualify as public. This demarcation line between public and private forms of incitement is crucial, as it concretizes the underlying reason for the punishablility of the crime. 96 ICTR Akayesu, TC, 2 September 1998, paras 556–7; Cassese/Gaeta et al., Cassese’s Int’l Criminal Law (3rd ed.), 203. 97 ICTR Nahimana et al., AC, 28 November 2007, para. 698; ICTR Kalimanzira, TC, 22 June 2009, para. 514; ICTR Bikindi, TC, 2 December 2008, para. 387; ICTR Niyitegeka, TC, 16 May 2003, para. 431; ICTR Akayesu, TC, 2 September 1998, paras 557–8. 98 ICTR Nzabonimana, TC, 31 May 2012, para. 1752; ICTR Nahimana et al., AC, 28 November 2007, para. 692. 99 ICTR Nahimana et al., AC, 28 November 2007, para. 701. The Chamber did not deem the absence of ambiguity a notional component of ‘directness’, though, but formulated the evidentiary rule that in view of an ambiguous discourse, direct [and public] incitement could not be proven beyond reasonable doubt. 100 ILC Draft Code (1996) Commentary, Article 2 para. 16 (22) (emphasis added). 101 In Kalimanzira (22 June 2009, para. 515) the ICTR Trial Chamber provided a number of examples, holding that ‘[i]ncitement is public when conducted through speeches, shouting or threats uttered in public places or at public gatherings, or through the sale or dissemination, offer for sale or display of written material or printed matter in public places or at public gatherings, or through the public display of placards or posters, or through any other means of audiovisual communication.’

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Article III 34–36 Directing inflammatory calls to an indeterminate group of recipients is particularly dangerous, as the author may trigger a chain of events which he cannot control, unlike utterances in private context.102 It is this increased danger which warrants the configuration of ‘incitement to commit genocide’ as an inchoate crime, as opposed to ‘inducement’ under Art III lit. (e).103 35 With respect to the mental elements of incitement to commit genocide, two requirements must be met. First, the offender must have acted with intent and knowledge with regard to the act of incitement and, according to the view proposed here, to the probability that at least one member of his audience actually decides to commit acts of genocide as a result of the incitement. Secondly, just as in the case of conspiracy, the offender must also have acted with the ulterior ‘intent to destroy the group in whole or in part’ as required by Article II.104 Accordingly, the destruction of the targeted (portion of the) group must have been the perpetrator’s goal.105 The additional cognitive component106 of the specific intent element, however, should be slightly modified for the reasons outlined above in reference to the crime of conspiracy.107 It is submitted that the cognitive element of specific intent is satisfied if the inciter acted with the awareness that (a) the possibility exists of a future development which could lead to the full or partial destruction of a protected group, and (b) that his inciting discourse may contribute to that destruction. 3. Attempt to commit genocide 36

In general terms, ‘attempt’ describes the punishable stage between mere preparation and the actual commission of a crime.108 Determining its precise configurations in relation to genocide is not an easy task. To date, no one has been tried for attempt to commit genocide before an international court,109 academic writing has 102

Werle, Int’l Criminal Law (2nd ed.), para. 771. Similarly, the ILC Draft Code (1996) Commentary (Article 2 para. 16 (22)) held: ‘This public appeal for criminal action increases the likelihood that at least one individual will respond to the appeal and, moreover, encourages the kind of ‘mob violence’ in which a number of individuals engage in criminal conduct.’ 104 ICTR Musema, TC, 27 January 2000, para. 192; Werle, Int’l Criminal Law (2nd ed.), para. 772; Cassese/Gaeta et al., Cassese’s Int’l Criminal Law (3rd ed.), 203; Ohlin, in: Gaeta, Genocide Convention, 196. 105 Supra, Article II, mn. 104. 106 Article II, mn. 114. 107 Supra, mn. 24. 108 Likewise, in reference to Article 25 para. 3 lit. (f) ICC-Statute: Mettraux, International Crimes, 257. 109 Particularly in view of the ad hoc tribunals, a tendency can be observed not to convict a defendant for an attempted crime (even though ‘attempt’ is a well settled piece of customary law – Werle, Int’l Criminal Law (2nd ed.), para. 628) as long as the respective act constitutes a completed crime under a different legal aspect. In the Vasiljevic´ case, the accused had forced seven victims to line up and then opened fire on them. Five persons were killed, two pretended to be dead but managed to escape later on. Instead of attempted murder, the Trial Chamber (29 November 2002, para. 239) found the accused guilty of inhumane treatment of the two survivors, holding that ‘… the attempted murder of VG-32 and VG-14 constitutes a serious attack on their human dignity, and that it caused VG-32 and VG-14 immeasurable mental suffering, and that the Accused, by his acts, intended to seriously attack the human dignity of VG-32 and VG-14 and to inflict serious physical and mental suffering upon them. The Trial Chamber is thus satisfied that the Accused incurred individual criminal responsibility for the attempted murder of these two Muslim men as inhumane acts pursuant to his participation in a joint criminal enterprise to murder them.’ 103

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afforded comparably little attention to it,110 and an in-depth analysis of attempt in international criminal law is yet to be written.111 At the outset, the punishability of attempt as such necessitates an explanation, as 37 the offender’s conduct, by definition, has failed to produce the intended unlawful result. To this end, reference can first be made to the ILC’s Commentary to its 1996 Draft Code, which included a general rule on criminal attempt. The ILC held the specific punishable wrong of attempt to lie both in the offender’s subjective culpability and in the objective imperilment of international legal values: ‘First, a high degree of culpability attaches to an individual who attempts to commit a crime and is unsuccessful only because of circumstances beyond his control rather than his own decision to abandon the criminal endeavour. Secondly, the fact that an individual has taken a significant step towards the completion of one of the crimes … entails a threat to international peace and security because of the very serious nature of these crimes.’112 The latter reason appears flimsy, however, in cases of ‘ineffective attempts’ (i. e. where the offender’s conduct was, from the outset, incapable of effectuating the intended wrong), whose punishability is likewise recognized in international customary law.113 It is therefore submitted that alongside the ILC’s retrospective punitive rationale, the punishment of attempt is additionally predicated upon the need to prevent the offender, who has evinced his readiness to commit crimes, from the commission of further criminal acts. Considering the peculiarities of genocide, this preventive rationale is particularly important, as the perpetrator’s intent to destroy the targeted group will normally prompt him to further acts of violence, and the background of a large-scale genocidal campaign in such cases will generally provide many more opportunities to perform such acts. Regarding the material side of attempt, Article 25 para. 3 lit. (f) ICC-Statute 38 requires ‘taking action that commences [the crime’s] execution by means of a substantial step.’ Along the same lines, the ILC Draft Code (1996) defined the beginning of attempt as ‘taking action commencing the execution of a crime’, and suggested in its accompanying commentary that the individual must have ‘performed an act which constitutes a significant step towards the completion of the crime.’114 In essence, both approaches feature a rather unfortunate amalgamation of the French115 and U.S.116 criminal law definitions on attempt, giving rise to a notional blur, as a ‘substantial step’ towards commission would seem to denote a 110

See however: Ohlin, in: Gaeta, UN Genocide Convention, 173–85; Schabas, Genocide in Int’l Law (2nd ed.), 334–9; Ambos, Der Allgemeine Teil des Vo¨lkerstrafrechts, 707–56. 111 Ohlin (in: Gaeta, UN Genocide Convention, 175) rightfully calls attempt in general the ‘forgotten mode of liability in international criminal law.’ 112 ILC Draft Code Commentary (1996), Article 2 para. 17 (22). 113 See: Ambos, Der Allgemeine Teil des Vo ¨ lkerstrafrechts, 488; Eser, in: Cassese/Gaeta/Jones, The Rome Statute (Vol. I), 815; Werle, Int’l Criminal Law (2nd ed.), para. 771. 114 ILC Draft Code Commentary (1996), Article 2 para. 17 (22). 115 Code Pe ´nal Article 121–5: ‘La tentative est constitue´e de`s lors que, manifeste´e par un commencement d’exe´cution, elle n’a e´te´ suspendue ou n’a manque´ son effet qu’en raison de circonstances inde´pendantes de la volonte´ de son auteur.’ 116 U.S. Model Penal Code § 5.01(1): ‘Definition of Attempt. A person is guilty of attempt to commit a crime if … he: … (c) purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.’

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Article III 38–40 slightly earlier point in time than the commencement of the execution.117 In consideration of the fact that the travaux pre´paratoires only mention the ‘commencement of execution’ as marking the beginning of attempt, and accounting for the fact that both the Ad Hoc Committee and the Sixth Committee clearly rejected the criminalization of any preparatory acts, it is submitted that for the purposes of the Convention attempt is not committed unless the offender has objectively crossed the line into executing the crime. The completion of single objective elements of the crime as well as the infliction of damage to or the immediate imperilment of protected legal values may be drawn upon as indicators. As regards the subjective side, all mental elements of genocide are required, including the specific intent to destroy a group, in whole or in part.118 39 Similar to many national jurisdictions, Article 25 para. 3 lit. (f) ICC-Statute relieves a person from criminal liability who ‘abandons the effort to commit the crime or otherwise prevents the completion of the crime … if that person completely and voluntarily gave up the criminal purpose.’ The reasonableness of granting such a defence to the perpetrator of attempt has not gone unchallenged. Schabas questions the underlying presumption that such a defence can have the power to induce criminals to change their minds and withdraw from an advanced criminal enterprise before completion.119 Indeed, the idea of ‘incentive’ alone appears a feeble argument to warrant impunity in such cases. However, the defence of abandonment may well be explained on the basis of the preventive rationale of the crime of attempt. As outlined above, the punishability of attempted genocide is essentially predicated on the likelihood that a person who shares the goal of destroying a group and finds himself amidst a genocidal campaign will set about committing further acts of genocide against the protected group. The key question of whether or not a specific ‘defence of abandonment’ should be admitted is if the offender’s withdrawal sufficiently neutralizes the risk of further crimes against that group. In the case of genocide, besides the other perquisites set out by Article 25 para. 3 lit. (f) ICC-Statute, this would require that the perpetrator must not only abandon his intent vis-à-vis the concrete act, but also – and primarily – the intent to destroy the protected group. In regards to genocide, the ‘criminal purpose’ in Article 25 para. 3 lit. (f) ICC-Statute would hence have to be construed as encompassing the specific ‘intent to destroy’.

III. Complicity in genocide 1. General remarks 40

At its core, criminal responsibility for complicity in another person’s crime is anchored in international law both as a general principle120 and in customary law.121 Its distinctive feature consists of the dependence or ‘accessoriness’ of the accom117 According to the U.S. Model Penal Code, Sec. 5.01(2), a ‘substantial step’ towards commission is already given ‘when it is strongly corroborative of the actor’s criminal purpose.’ For more details regarding the unclear wording of Article 25 para. 3 lit. (f) ICC-Statute, see: Werle, Int’l Criminal Law (2nd ed.), para. 629, fn. 509. 118 Satzger, Int’l and Eur. Crim. Law, § 13, mn. 69 (243). 119 Schabas, Genocide in Int’l Law (2nd ed.), 338–9, with further references. 120 ICTY Mucic ´ et al., TC, 16 November 1998, para. 321. 121 ICTY Tadic ´, TC, 7 May 1997, paras 666, 669.

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plice’s act to the principal offence of at least one perpetrator. Where a principal offence fails to be established, the accomplice is not criminally liable, however vile his act may have been. This sets complicity apart from the ‘inchoate crimes’ under Article III lit. (b)–(d) which are punishable acts in and of themselves. In international criminal law, complicity can generally be established in relation to any principal offence, including inchoate crimes.122 The rules set out by the Convention are stricter. The unequivocal wording of Article III lit. (e) and the travaux pre´paratoires123 clearly show that, for the purposes of the Convention, complicity in any act other than complete commission of genocide under Articles III lit. (a), II shall not be deemed punishable.124 Due to its accessoriness to a principal offence, complicity is frequently con- 41 ceived of as a minor or secondary form of criminal conduct, indicative of a lesser degree of responsibility on the accomplice’s part.125 In respect of genocide, some authors dispute this finding, feeling that in view of the organized structure of most genocidal campaigns ‘[t]he ‘accomplice’ is often the real villain, and the ‘principal offender’ a small cog in the machine.’126 This finding would undoubtedly be accurate on the basis of a very narrow notion of principal perpetration, but may well be queried in light of the various mechanisms for attributing personal acts of on-site executors to the behind the scenes string-pullers. Such mechanisms include the concepts of commission through another, co-perpetration and combined forms of attribution (‘indirect co-perpetration’),127 allowing principal liability to be attached to those who mastermind the genocidal campaign without getting their hands dirty.128 Against this backdrop, there is no apparent need to turn complicity into a melting pot of liability for all those who do not ‘wield machine guns or machetes.’129 The word ‘complicity’ serves as an umbrella term of a whole range of modes of 42 participation. In conformance with Article 25 para. 3 lit. (b)/(c) ICC-Statute, these can be allocated to the sub-categories of ‘inducement’ and ‘assistance’, depending on whether they stirred the principal’s resolve to commit the crime (‘ordering, soliciting, inducing’;130 ‘ordering, instigating’;131 ‘encouraging’132) or provided aid in its commission, respectively (‘aiding, abetting or otherwise assisting’133; ‘aiding and

122 The eligibility of attempt as a principal offence is explicitly provided by Article 25 para. 3 lit. (b)/(c) ICC-Statute. 123 Supra, mn. 10. 124 See: ICTR Akayesu, TC, 2 September 1998, para. 105; ICTR Musema, TC, 27 January 2000, §§ 171–4. 125 Werle, Int’l Criminal Law (2nd ed.), para. 447; Werle/Burkhard, in: Sliedregt/Vasiliev, Pluralism in International Criminal Law, passim. 126 Schabas, Genocide in Int’l Law (2nd ed.), 340. Similarly: Obote-Odora, IntCrimLRev 2 (2002), 376. 127 See, for instance: Wirth, JIntCrimJust 10 (2012), 971–95; Eldar, Indirect Co-Perpetration, CrimLPhil (2013), passim; Ohlin, LeidenJIL, 25 (2012), 771–97. 128 It may also be noted in this context that the Sixth Committee was anything but hostile towards concepts of perpetratorship by virtue of attribution of third persons’ acts. Supra, mn. 3. 129 Schabas, Genocide in Int’l Law (2nd ed.), 341. 130 Article 25 para. 3 lit. (b) ICC-Statute. 131 Article 7 para. 1 ICTY-Statute; Article 6 para. 1 ICTR-Statute. 132 Obote-Odora, IntCrimLRev 2 (2002), 375. 133 Article 25 para. 3 lit. (c) ICC-Statute.

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Article III 42–45 abetting’134; ‘facilitating’135). As the terms in each of these two groups are only set apart by nuances and subject to identical legal consequences, any further effort to delimit them can be spared.136 43 According to the prevailing view, complicity in genocide does not require specific intent to be present in the accessory.137 44 Distinguishing complicity from perpetratorship should be effectuated by means of the ‘control of the crime’-approach as applied by the ICC.138 The notion of ‘control’ being blurry at the margin, it should be noted that there is a fluid passage between inducement and perpetration through another person (indirect perpetration) on the one hand, and assisting and co-perpetration on the other hand. This is particularly clear in the case of a superior ordering the commission of a crime which may be either an act of indirect perpetration or inducement, depending on the extent of control the superior effectively has over his subordinate’s actions.139 Furthermore, each act of co-perpetration comprises an act of assistance as a lesser component, and the same is true for indirect perpetration vis-a`-vis inducement. For this reason, complicity may serve as a form of fall back liability in cases where a person, despite having control over the incriminated action, cannot be punished as a perpetrator for lack of specific intent. 2. Inducement 45

Inducement means prompting the principal perpetrator to commit genocide by evoking in him the decision to carry out an act under Article II lit. (a)-(e).140 The accessory must have caused the crime by driving the perpetrator’s resolution to act.141 In cases where the perpetrators are already bound and determined to commit the crime (omnimodo facturi), instigative acts only amount to an ineffective attempt at inducement, which is not punishable under the Convention. On the other hand, as long as the addressee of inducing acts is indecisive or only inclined to commit the crime, there is still room for inducement. Likewise, the fact that a perpetrator holds specific intent does not per se rule out inducement, as a person who aspires after the destruction of a group may still be prompted to commit particular acts in pursuit of this goal which he would not have committed without the accomplice’s interference. 134

Article 7 para. 1 ICTY-Statute; Article 6 para. 1 ICTR-Statute. Obote-Odora, IntCrimLRev 2 (2002), 375. 136 See: Satzger, Int’l and Eur. Crim. Law, § 13, mn. 61 (240). 137 Kittichaisaree, International Criminal Law, 244; Satzger, Int’l and Eur. Crim. Law, § 13, mn. 61 (240); similarly: Werle, Int’l Criminal Law (2nd ed.), para. 485 (in regard of instigation); ICTY Krstic´, AC, 19 April 2004, para. 140 with further references. 138 Supra, mns 18, 20. 139 See: Safferling, Internationales Strafrecht, § 5, mn. 83 (134). 140 Ambos, in: Triffterer, ICC Statute (2nd ed.), Article 25, para. 15. 141 In Kordic ˇ erkez (AC, 17 December 2004, para. 27), the ICTY Appeals Chamber took a ´ and C different view, holding that ‘[w]hile it is not necessary to prove that the crime would not have been perpetrated without the involvement of the accused, it is sufficient to demonstrate that the instigation was a factor substantially contributing to the conduct of another person committing the crime.’ Similarly: ICTR Nahimana et al, AC, 28 November 2007, para. 502. However, this definition would also extend to forms of mere encouragement and moral support, which makes it impossible to discern inducement from assistance (see infra, mn. 46), for the latter of which the ICC-Statute requires a more restrictive standard of intent. 135

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On the subjective side, a ‘dual intent’ is required, covering both the future commission of the principal offence and the act of inducement itself.142 In relation to the consequence, i. e. the principal crime, Article 30 para. 2 lit. (b); para. 3 ICCStatute requires awareness that the principal crime will occur in the ordinary course of events, which would seem to imply the awareness that the principal crime is likely to occur.143 Along the same lines, the ad hoc tribunals’ Appeals Chambers required the inducer to be aware of the substantial likelihood that a crime will be committed.144 3. Assistance The term ‘assistance’ covers all contributions which enable, facilitate or intensify 46 the commission of the principal offence.145 Consequently, the act of assistance is not required to constitute a condicio sine qua non for the commission of the principal crime.146 The assistance given need not to be physical or ‘tangible’ in nature, but may also consist of moral support or encouragement.147 In any event, however, the contribution must have a substantial effect on the perpetration of the crime.148 Overly tenuous forms of influence are hence not sufficient. Whether the common-law doctrine of ‘complicity after the fact’ falls within the 47 scope of assistance in the commission of genocide is open to doubt. Both the historical dominance of Anglo-American legal concepts within international criminal law and the statements of the USA and Venezuela during the drafting process149 outlined above militate in favour of this concept. Moreover, chambers of the ICTY have occasionally confirmed that aiding and abetting may occur before, during or after the principal crime.150 Concretizing this concept, in regards to the reburial of victims of the Srebrenica massacre, the Blagojevic´ Trial Chamber held that aiding and abetting after the fact demands a prior agreement between the assistant and the principal perpetrator that the contributive act shall be rendered after the completion of the crime.151 Despite the ICTY’s noteworthy advocacy, however, the concept of complicity after the fact raises some concerns. Firstly, it 142

Satzger, Int’l and Eur. Crim. Law, § 13, mn. 61 (240). See: ICC Lubanga, TC, 14 March 2012, para. 1011. Similarly: ICC Bemba, PTC, 15 June 2009, paras 360–9. 144 ICTY Kordic ˇ erkez, AC, 17 December 2004, para. 112. Similarly: ICTR Nahimana et al., ´ and C AC, 28 November 2007, para. 480; Werle, Int’l Criminal Law (2nd ed.), para. 484. Cassese/Gaeta et al. (Cassese’s Int’l Criminal Law (3rd ed.), 197) additionally require the inducer’s acceptance of ˇ erkez (ibid.), the Appeals Chamber expressly rejected ‘acceptance’ as a this risk. In Kordic´ and C stand-alone element of intent, holding that ‘instigating with such awareness has to be regarded as accepting that crime.’ 145 The chosen tripartite definition features dominantly in German criminal law (see, for instance: Roxin, Strafrecht Allgemeiner Teil, Vol. II, § 26 mns 212–3. 146 ICTY Kvoc ˇka et al., TC, 2 November 2001, para. 255; Ambos, in: Triffterer, ICC Statute (2nd ed.), Article 25 para. 23. 147 ICTY Blasˇkic ´ , AC, 29 July 2004, para. 46; Cassese’s International Criminal Law, 3rd ed., 193; Satzger, Int’l and Eur. Crim. Law, § 13, mn. 62 (240). 148 ICTY Furundz ˇija, TC, 10 December 1998, para. 235; ICTR Kayishema and Ruzindana, AC, 1 June 2001, para. 198; ICTY Blasˇkic´, AC, 29 July 2004, para. 46; ICC Lubanga, TC, 14 March 2012, para. 997. 149 Supra, mn. 10. 150 ICTY Blasˇkic´, AC, 29 July 2004, para. 48; ICTY Simic ´ et al., TC, 17 October 2003, para. 163, with further references. 151 Blagojevic ´ and Jokic´, TC, 17 January 2005, para. 731. 143

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Article III 47–50 seems to be a logical impossibility to add substantially to a crime which has already been completed. And secondly, there is no apparent desideratum for retrospective complicity, since the required agreement before the commission will as a rule at least lend moral support to the principal perpetrator and thus be punishable as complicity before the fact. Furthermore, the most important kind of subsequent assistance, obstruction of punishment, is already sufficiently covered by the ‘punitive’ variant of superior responsibility.152 48 According to a well-settled line within the case law of the ad hoc tribunals, responsibility for assistance can also be incurred by omission.153 Upon closer review, however, this finding requires qualification. First of all, the ‘substantial effect’-requirement does not reconcile easily with the concept of omission. A ‘substantial effect’ seems to imply some kind of physically effective momentum, an operative influence upon the course of events which would be missing in the case of a failure to act, which in fact is a nonentity in physical terms.154 Moreover, according to the approach proposed here,155 the required ‘duty to act’ flows from the principle of control. Whenever this control covers the entire commission of a crime by a third person, the omitter would therefore qualify as a (co-)perpetrator of the crime and not merely an accomplice.156 In this light, there would only be room for criminal assistance by omission in cases where the omissive part is in full control over the conduct of another person who merely assists in the crime of a third party.157 49 Concerning the mental element of assistance, the ad hoc tribunals have consistently ruled that ‘knowledge that the acts performed by the aider and abettor assist in the commission of the specific crime of the principal’ is required.158 Article 25 para. 3 lit. (c) ICC-Statute goes further and requires the assistant to act purposefully regarding the furthering effect of this contribution.

IV. Superior responsibility 1. General remarks 50

The concept of superior responsibility knows no antecedent in domestic law and constitutes a genuine innovation of international criminal law. Its origins date back to the jurisprudence of US military tribunals in the wake of the Second World War.159 First codified in Article 86 para. 2 Add. Prot. I, the concept of superior 152

Infra, mn. 51. See, for instance: ICTY Kvocˇka et al., TC, 2 November 2001, para. 255; ICTY Kordic´ and ˇ erkez, TC 26 February 2002, para. 389; ICTY Natelilic´, TC, 31 March 2003, para. 63; ICTY Simic´ C et al., TC, 17 October 2003, para. 162; ICTY Krnojelac, AC, 17 September 2003, para. 38; ICTY Galic´, TC, 5 December 2003 para. 168. 154 See: Berster, Die vo ¨ lkerstrafrechtliche Unterlassungsverantwortlichkeit, 81–2. 155 For more details see infra, mns 68-71. 156 For the ‘control of the crime’-approach, see supra, mns 18, 20. 157 For more details see: Berster, Die vo ¨ lkerstrafrechtliche Unterlassungsverantwortlichkeit, 229–36. 158 ICTY Vasiljevic ´, AC, 25 February 2004, para. 102; ICTY Blasˇkic´, AC, 29 July 2004, paras 45, 49. In the latter judgment, the Appeals Chamber expressly rejected the Trial Chamber’s view according to which ‘in addition to knowledge that his acts assist the commission of the crime, the aider and abettor needs to have intended to provide assistance, or as a minimum, accepted that such assistance would be a possible and forseeable consequence of his conduct.’ 159 Werle, Int’l Criminal Law (2nd ed.), para. 500, fn. 275. 153

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liability has been included in all subsequent codifications of international criminal law160 and has found regular application in the case law of international courts. Accordingly, it can be counted as international customary law.161 The notion of superior responsibility embraces two variants with quite disparate characteristics. The first establishes a superior’s liability for the failure to prevent crimes which are committed by his subordinates. As has been occasionally stated by chambers of the ICTY, this type of criminal imputation is essentially predicated upon the superior’s effective control over his subordinates’ actions,162 which really is a periphrasis of the ‘control of the crime’ principle. Thus, the ‘preventive form’ of superior responsibility shares its underlying rationale with the different modes of perpetration as reflected by Article 25 para. 3 lit. (a) ICC-Statute. Nevertheless, it cannot be categorized lightly as a species of perpetration by omission. It should be noted that imputation by virtue of control cannot extend beyond the subordinate’s conduct. Rather, the classification of the superior’s omission is principally accessory to the category of his subordinate’s unlawful conduct which he fails to prevent. In their more recent jurisprudence, the Appeal Chambers of the ad hoc tribunals have consistently held that for the purposes of superior responsibility the requirement of crimes being ‘committed’ by subordinates163 must be understood in a broad sense and encompass all modes of criminal responsibility.164 Therefore, for instance, a military commander who does not prevent a subordinate from lending aid to a third person’s acts of genocide would ‘only’ incur superior responsibility for aiding and abetting genocide. Once crimes have been committed by subordinates, the second variant of super- 51 ior responsibility steps in, creating criminal responsibility for the superior’s failure to punish such crimes, or the failure to submit the matter to the competent authorities for further investigation and prosecution. Although in all codifications of international criminal law this ‘punitive form’ of superior responsibility is mentioned in the same context as the ‘preventive’ variant, it is set apart by the fact that at the time of the superior’s punishable omission, the acts of his subordinate lie in the past. For this reason, the crime’s underlying rationale cannot consist in the superior’s effective control over the subordinate’s conduct. Neither can it be categorized as ‘commission by omission’ or ‘improper omission’, which marks a second difference to the ‘preventive form’.165 Ultimately, it would seem preferable to 160 Article 7 para. 3 ICTY-Statute; Article 6 para. 3 ICTR-Statute; Article 28 ICC-Statute; Article 2 para. 3 lit. (c), Article 6 Draft Code (1996). 161 Werle, Int’l Criminal Law (2nd ed.), para. 500. 162 ICTY Mucic ´ et al., TC, 16 November 1998, para. 377; ICTY Mucic´ et al., AC, 20 February 2001, paras 197; ICTY Strugar, TC, 31 January 2005, paras 359–60. 163 Article 7 para. 3 ICTY-Statute/Article 6 para. 3 ICTR-Statute: ‘committed by a subordinate’/ ‘about to commit such acts’; Article 28 lit. (a)/(b) ICC-Statute: ‘committed by forces under his or her effective command’/‘committed by subordinates under his or her effective authority and control’. 164 ICTY Blagojevic ´ and Jokic´, AC, 9 May 2007, paras 280–2; ICTR Nahimana et al., AC, 28 November 2007, paras 485–6. Specifically, the chambers referred to the modes of responsibility provided by Article 6 para. 1 ICTR-Statute/Article 7 para. 1 ICTY-Statute, i. e. planning, instigating, ordering, committing or otherwise aiding and abetting in the planning, preparation or execution of a crime referred to in the respective statute. 165 Whether the ‘preventive form’ of superior responsibility qualifies as a subset of ‘commission by omission’ is controversial. For an affirmative position, see: Berster, Die vo¨lkerstrafrechtliche Unterlassungsverantwortlichkeit, 220–3; Burghardt, Die Vorgesetztenverantwortlichkeit im vo¨lk-

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Article III 51–53 classify the ‘punitive form’ of superior responsibility as a stand-alone crime of obstruction of justice by ‘omission proper’.166 2. The ‘preventive form’ of superior responsibility (failure to prevent) in particular In general terms, in order to incur superior responsibility for the non-prevention of crimes carried out by subordinates, three requirements must be met: First of all, there must be a superior-subordinate relationship between the passive participant and the immediate executor of the penalized act. Such a relationship requires the omitter’s effective control over the executor. Normally, such control will flow from sufficiently stable hierarchical structures.167 Even though the required de facto control will in most cases build upon de jure-relationships of military, administrative or private law, legal bonds between the participants are neither prerequisite nor sufficient for this mode of liability.168 The relationship need not be military in character but also extends to hierarchies of a civilian nature. In that respect, international case law has found ministers and political functionaries,169 police-chiefs, majors,170 and senior leaders of unions and private corporations171 to hold the position of a superior. The effective control is the productive principle that creates the superior’s duty to prevent crimes being carried out by his subordinates.172 53 The second constituent part is the superior’s failure to discharge this duty of prevention. Such a duty does not arise in cases where the superior is incapable of averting the unlawful act (ultra posse nemo obligatur). In addition, the statutes of the ad hoc tribunals and the ICC specify that only ‘necessary’ and ‘reasonable measures’ need to be taken. The term ‘necessary’ underscores the fact that omissions which (from an objective perspective ex ante) would have been ineffectual in actually preventing the crime do not give rise to criminal responsibility as a superior.173 ‘Reasonable measures’ provide a normative corrective by reducing the superior’s duty to taking only such measures as are ‘reasonably falling within the material powers of the superior.’174 52

erstrafrechtlichen Straftatsystem, 402–18; Ambos, in: Cassese/Gaeta/Jones, The Rome Statute of the ICC, Vol I., 850–1. 166 Dissociating the legal nature of both variants of superior responsibility is also advocated by Nerlich (JIntCrimJust 5 (2007), 682) and Meloni (JIntCrimJust 5 (2007), 633–7). 167 ICTY Trial Chambers have established that a superior-subordinate relationship does not necessitate the existence of organisational-hierarchical structures, but may also arise on an ad hoc or temporary basis. (ICTY Mrksˇic´ et al., TC, 27 September 2007, para. 560; ICTY Strugar, TC, 31 January 2005, para. 362). For a different opinion see Werle, Int’l Criminal Law (2nd ed.), para. 508; Satzger, Int’l and Eur. Crim. Law, § 13, mn. 65 (242). 168 Werle, Int’l Criminal Law (2nd ed.), para. 507. 169 ICTR Kambanda, TC, 4 September 1998, para. 39 (ii) (prime minister); ICTR Kayishema and Ruzindana, TC, 21 May 1999, paras 500–6 (prefect). 170 ICTR Nyiramasuhuko et al., TC, 24 June 2011, paras 5804–5. 171 ICTR Musema, TC, 27 January 2000, paras 866, 876–8, 880 (tea factory director); ICTR Nahimana et al., TC, 3 December 2003, paras 970–3 (top-managers of a radio broadcasting cooperation). For a critical view on superior responsibility in the latter case, see: May, Genocide, 194–201. 172 See infra, mn. 68. 173 For a different view see: Werle, Int’l Criminal Law (2nd ed.), para. 524. 174 ICTY Oric ´, AC, 3 July 2008, para. 177. See also: Berster, Die vo¨lkerstrafrechtliche Unterlassungsverantwortlichkeit, 211–7.

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Thirdly, in terms of mens rea, customary law extends superior liability to negligent failures to act, demanding that the superior either knew or had reason to know that a criminal act was about to be committed. According to the ICTY Appeals Chamber, the ‘reason to know’-threshold is met when the superior holds information that would inform him of crimes to be committed by his subordinates.175 This information may be general in character and does not need to provide indications of specific, imminent crimes.176 In regards to non-military commanders, Article 28 lit. (b) (i) ICC-Statute provides a higher standard, requiring that the superior either knew or consciously disregarded information which clearly indicated that subordinates were about to commit unlawful acts.177 The markedly lower mental requirements of superior responsibility are bound to cause tensions with the high standard of specific genocidal intent. Schabas goes as far as remarking that ‘exactly how a specific intent offence can be committed by negligence remains somewhat of a paradox.’178 In addressing this issue, three different constellations can be discerned: (a) No particular frictions arise whenever a superior bears the specific intent to destroy a group in whole or in part and fails to prevent a certain act with intent and knowledge (knowledge meaning awareness that a consequence will occur in the ordinary course of events). (b) Things are more complicated when the superior has the specific intent to destroy a protected group in whole or in part, but does not fulfil the elements of general intent, i. e. intent and knowledge regarding his failure to prevent individual genocidal acts of his subordinates. In such situations, the specific intent element turns out to be only partly reconcilable with mental elements below the usual threshold of general intent: The prevalent view suggests that specific intent entirely consists of a volitional element, requiring that the destruction of the group must be the perpetrator’s goal.179 This alone does not exclude the possibility of negligent omission. For instance, a military commander who orders the villages A and B to be annihilated, and should have known that his inferiors also set about killing all inhabitants of village C, would have acted negligently with respect to village C and still have held the specific intent to destroy the targeted group. However, the prevalent approach further requires the perpetrator’s unlawful conduct to be motivated by his specific intent. This is usually expressed by the formula that the individual act or omission must have been committed because of the intent to destroy.180 Difficult to be evinced in any case, it stands to reason that this element would face insurmountable obstacles of proof if it were extended to subconscious forms of psychological causality. It therefore seems safe to hold that 175 ICTR Nahimana et al., AC, 28 November 2007, para. 791; ICTY Blasˇkic ´ , AC, 29 July 2004, para. 62. 176 For instance, it would be sufficient if a military commander had received information that some of his soldiers have a violent or unstable character, have a criminal reputation, or have been drinking prior to being sent on a mission. See: Moloto, BerkILPub 3 (2009), 18. 177 This standard is a novelty in international criminal law. For attempts to determine its position within the kaleidoscope of the settled standards of mens rea, see, for instance: Vetter, YaleJIL 25 (2000), 124. 178 Schabas, Genocide in Int’l Law (2nd ed.), 363. 179 Supra, Article II, mn. 104. 180 Supra, Article II, mn. 140.

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Article III 58–60 the prevalent assumption as to the motive-requirement demands at least some sort of consciousness on the part of the superior and is hence a priori irreconcilable with mere negligence. If the motive-element were to be retained, the lowest-possible consonant mens rea threshold would hence largely have to match the standard of ‘consciously disregarding information’ as set out by Article 28 lit. (b) (i) ICCStatute for non-military commanders. Pertinent scenarios would presumably be rare but are not unconceivable. For instance, a superior who aspires after the destruction of a group but does not dare to order acts under Article II, may still be motivated into consciously turning a blind eye to potential genocidal acts of subordinates. Such a mindset would still undercut the usual requirements of general intent in international criminal law181 – in fact, it rather constitutes a standard of dolus eventualis, culpa luxuria, or recklessness – but would be consistent with the intent to destroy and a motivational link between specific intent and the failure to prevent individual acts of genocide. 59 In essence, the same applies to the understanding of Article II advocated here. According to that view, a link of motivation between the specific intent and the individual act is dispensable within the definition of genocide.182 To satisfy the specific intent element, however, which is usually deemed to require that the group’s destruction forms the perpetrator’s goal, an additional element of knowledge is needed. Specifically, the offender must be aware that his illicit conduct may have a contributive effect towards the realization of the destructive goal. In the case outlined above of a superior deciding not to exercise control over his subordinates while being aware that they might turn violent towards the group he seeks to destroy, this requirement would be met. 60 (c) Finally, the question arises as to whether a superior whose specific intent cannot be established could still be held accountable for the failure to prevent subordinates from committing genocide. Within international jurisprudence and academic discourse the issue is a subject of controversy. In Stakic´, the ICTY Trial Chamber apodictically held that ‘[i]t follows from Article 4 and the unique nature of genocide that the dolus specialis is required for responsibility under art. 7 (3) [superior responsibility] as well.’183 The prevailing opposing opinion argues against the requirement of specific intent in cases of superior responsibility.184 In order to warrant this view, two issues come into question. On the one hand, when a superior does not share his subordinates’ intent to destroy, one may consider punishing him as an accomplice in genocide. It must be recalled that (according to the present view) the classification of the superior’s omission as perpetratorship, instigation, aiding and abetting etc. is – in principle – determined by the classification of the subordinate’s act.185 Had the subordinate not committed genocide, but only given assistance to the perpetrator, the passive 181

Supra, Article II, mns 97–98. Supra, Article II, mns 141–145. 183 ICTY Stakic ´, TC, 31 October 2002, para. 92. For a concurring view, see: Cassese/Gaeta et al., Cassese’s Int’l Criminal Law (3rd ed.), 129–30; Mettraux, International Crimes, 261–2. 184 ICTR Nahimana et al., AC, 28 November 2007, paras 771, 791; ICTY Brd-anin, TC, 1 September 2004, paras 719–721; ICTY Blagojevic´ and Jokic´, TC, 17 January 2005, para. 779; ICTR Nyiramasuhuko et al., TC, 24 June 2011, paras 5808–9; Akhavan, JIntCrimJust 3 (2005), 989, 993; Werle, Int’l Criminal Law (2nd ed.), para. 518. 185 Supra, mn. 50. 182

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superior would unproblematically be liable for complicity in genocide, since complicity is usually not deemed to require specific intent.186 Thus, by reason of common sense, no acquittal is warranted if the subordinate goes beyond mere assistance and personally commits genocide. Complicity may therefore be drawn upon as a sort of fall-back liability in such cases.187 Finally, this approach would allow the smooth assimilation of the concept of superior responsibility into the wording of the Genocide Convention, which clearly demands the specific intent of each perpetrator, but not so in regard of accomplices. Nevertheless, there are further implications: As the Convention only provides for complicity in genocide, a superior who did not possess specific intent would go unpunished for failing to preventing any of the inchoate crimes laid out in Article III lit. (b)–(d). This would not only run counter the Convention’s preventive goals, but also conflict with the ICTR’s stance that a superior whose ‘intent to destroy’ cannot be established may well incur responsibility for failing to prevent incitement to commit genocide.188 For that reason, it would seem preferable to take recourse to an alternative, and somewhat more radical, solution. One may submit that the rules of superior responsibility constitute leges speciales in regard of mental elements of genocide. This is particularly suggested by the ICC-Statute, which stipulates an indiscriminate application of superior responsibility (Article 28 ICC-Statute) to all crimes under the ICC’s jurisdiction, including genocide.189 The ICTR seems to have interpreted Article 6 para. 3 ICTR-Statute in like manner, despite the fact that the Statute’s specific provision on participation in genocide (Article II para. 3 ICTR-Statute which is an exact copy of the present Article III) would have allowed for a different understanding. Pursuant to this alternative view, the lack of specific intent would not bar a superior’s responsibility for any of his subordinates’ acts under Article III of the Convention, including inchoate crimes.

V. Commission of genocide by omission Although most genocidal acts are carried out by active conduct, it is conceivable 61 that some acts within a genocidal campaign are committed by omission. For instance, a prison warden who kills inmates of a protected group by not supplying them with food and water, acting with the intent to destroy their ethnicity, would be held culpable for genocide by omission. In rare scenarios it is even thinkable that the genocidal macro scenario can be brought about by omission alone. For example, in view of a natural catastrophe threatening the very existence of a national minority on the territory of an authoritarian state, the dictator or members of a ruling elite may decide to withhold rescue operations, food and medical supplies in order to purge the group from the country’s majority population. In such cases, the ensuing sufferings and casualties amongst members of the protected group may well amount to genocide.190 186

Supra, mn. 43. See supra, mn. 44. 188 ICTR Nahimana et al., TC, 3 December 2003, paras 970–3. 189 Accordingly, Schabas (Triffterer, 2nd ed., Article 6 para. 156) holds that, within in the regime of the ICC-Statute, ‘it is possible to participate in the commission of genocide even despite real knowledge that the crime is being committed.’ 190 The occurrences in Myanmar in 2008 could possibly qualify as such. Around noon on 2 May 2008 the cyclone Nargis made landfall in Myanmar, particularly affecting the densely-populated 187

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Article III 62, 63 While the specific mode of superior responsibility is deeply entrenched in international criminal law, a general rule on punishable omission has met with much greater reticence on the part of international practice, jurisprudence and codification efforts. The 1998 Draft Statute for an International Criminal Court191 contained an omission clause but the Rome Conference ultimately decided to leave the issue to the future case law. Accordingly, the ICC Statute is silent on the matter.192 The ICTY and the ICTR have consistently held commission by omission to be encompassed by Article 7 para. 1 ICTY Statute and Article 6 para. 1 ICTR Statute,193 the ICTY even having based some convictions on that concept.194 Both tribunals have, however, largely refrained from explaining the concept or setting out its specific requirements in any detail. Legal scholarship has yielded a number of thorough studies on the subject over the past few years,195 though without arriving at concurrent conclusions. Whether commission by omission has by now actually become a rule of customary law or may be regarded as a general principle of international law hence remains a hot issue.196 According to the view proposed here, such a rule has already solidified into customary international law and is also established as general rule of international law.197 63 Aside from scholarly discord, however, it is hardly contested that the assimilation of passive to active conduct with respect to the commission of international crimes 62

Irrawaddy-Delta. The ensuing catastrophic destruction of homes, food, fresh water facilities and infrastructure immediately threatened the life of hundreds of thousands of Myanmar’s population. Although rescue and relief efforts were offered by the UN, a number of states and NGOs, Myanmar’s military rulers long refused to grant international auxiliaries access to the country. According to the PONJA-report of 2008 (a tripartite report by the UN, ASEAN and Myanmar), estimates suggest that the number of displaced persons may have been as high as 800.000. As of June 24, the official death toll already stood at over 84.000. In the wake of the disaster, occasional suspicions were raised that the government’s deadly failure to act may have borne upon the desire to destroy a considerable part of the Karen people, an ethnic and religious minority who had for decades been subjected to severe oppression. 191 UN Doc. A/CONF.183/2/Add.1 (Article 28 para. 2). 192 Saland, in: Lee, The International Criminal Court, 213. 193 For numerous citations see: Werle, Int’l Criminal Law (2nd ed.), para. 640; Berster, Die vo¨lkerstrafrechtliche Unterlassungsverantwortlichkeit, 51–3. 194 In Blasˇkic ´ (29 July 2004, para. 670) the ICTY Appeals Chamber upheld the appellant’s conviction for the use of human shields but overruled the Trial Chamber’s finding that the appellant had ordered the crime to be committed, instead basing the conviction on culpable omission. In Mrksˇic´ et al. (5 May 2009, para. 146, fn. 520), the ICTY Appeals Chamber explicitly affirmed that the above finding referred to commission by omission. See also: ICTY Limaj et al., AC, 30 November 2005, para. 652; ICTY Mucic´ et al., TC, 16 November 1998, para. 1123. 195 Duttwiler, IntCrimLRev 6 (2006), 1–61; Grimminger, Die allgemeine Unterlassungshaftung im Vo¨lkerstrafrecht; Weltz, Die Unterlassungshaftung im Vo¨lkerstrafrecht; Berster, Die vo¨lkerstrafrechtliche Unterlassungsverantwortlichkeit. 196 General liability for omission is being favoured by more and more scholars, such as: Werle, Int’l Criminal Law (2nd ed.), paras 642–3; Duttwiler, IntCrimLRev 6 (2006), 60–1. For more references, see: Berster, IntCrimLRev 10 (2010), 620, fn. 5. Others still reject the notion that commission by omission has already crystallized into a legal rule, such as: Ambos, Der Allgemeine Teil des Vo¨lkerstrafrechts, 667; Ambos, in: Triffterer, ICC Statute (2nd ed.), Article 25 paras 48–51; Eser, in: Cassese/Gaeta/Jones, The Rome Statute, Vol. I., 819; Grimminger, Die allgemeine Unterlassungshaftung im Vo¨lkerstrafrecht, 335, 371–2. A third group defers the issue as unsettled to be eventually resolved in the ICC’s case law. For instance: Weigend, ZStW 116 (2004), 1008 fn. 36. 197 Berster, Die vo ¨ lkerstrafrechtliche Unterlassungsverantwortlichkeit, 91–111. Likewise: Werle, Int’l Criminal Law (2nd ed.), para. 643.

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constitutes a desideratum.198 In regards to genocide, the need for rules on commission by omission found particular emphasis in the recommendations of Special Rapporteur Benjamin Whitaker in his 1985 report.199 Moreover, from a normative perspective, it hardly appears convincing that international criminal law goes as far as punishing negligent non-prevention of third parties’ crimes when the person carrying out the omission happens to be a superior, but turns a blind eye on the intentional failure to prevent most grievous wrongs in all remaining scenarios. It therefore seems safe to hold that the concept of ‘commission by omission’ should and will play an increasingly important role in the future international legal practice in relation to core-crimes in general and genocide in particular. As regards the prerequisites of criminal ‘commission by omission’, it seems to be 64 clear that the perpetrator must have had a duty to act, or – more precisely – a duty to prevent a consequence which the law would deem criminal if brought about by active conduct. In addition, the concrete possibility of preventing the incriminated result and a link of (hypothetical) causality are frequently named as further requirements.200 Upon closer inspection, however, the latter aspects are ultimately dispensable as stand-alone criteria, as they are already implied in the duty-element. To wit, on the one hand, it is a general rule of law that a legal duty cannot be assumed wherever a person is individually incapable of performing the action required (ultra posse nemo obligatur or impossibilium nulla obligatio). On the other hand, whenever no reasonable doubt exists that a person would have been capable of preventing a certain consequence, the case is made that but for the perpetrator’s inaction the consequence would not have occurred.201 The whole issue hence boiling down to the existence of a legal duty to prevent a 65 wrongful result, it is paramount to ascertain the sources that such duties can flow from. Two essentially different approaches have been put forward. The prevailing approach submits that reference should be made to individual legal duties provided by legal sources extraneous to international criminal law. International case law and legal doctrine have found duties under the law of armed conflict202 and international human rights law203 to be eligible in particular. Sporadically, duties 198

Even those authors who reject the existence of a general rule of omission acknowledge this need: Grimminger, Die allgemeine Unterlassungshaftung im Vo¨lkerstrafrecht, 346–7, 349–51; 371; Weltz, Die Unterlassungshaftung im Vo¨lkerstrafrecht, 272–279; 290; Ambos, Treatise on International Criminal Law, Vol. I, 197. 199 Whitaker, Report on Genocide (UN Doc. E/CN.4/Sub.2/1985/6), para. 40–1: ‘The conduct listed in Articles II and III of the Convention as being punishable as genocide consists exclusively of the commission of certain actions. Similar results, to Article II lit. (b) and (c) for example, however may be achieved by conscious acts of advertent omission. In certain cases, calculated neglect or negligence may be sufficient to destroy a designated group wholly or partially through, for instance, famine or disease. The Special Rapporteur therefore proposes that there should be added at the end of Article II of the convention words such as: ‘in any of the above conduct, a conscious act or acts of advertent omission may be as culpable as an act of commission.’ 200 See, for instance: Ormerod, Smith and Hogan, 70. 201 See: Berster, Die vo ¨ lkerstrafrechtliche Unterlassungsverantwortlichkeit, 120–2, 161. 202 ICTY Vasiljevic ´, TC, 29 November 2002, para. 62; ICTY Blasˇkic´, AC, 29 July 2004, para. 663, fn. 1384–5; ICTY Mrksˇic´ et al., AC, 5 May 2009, para. 151; ICTY Oric´, TC, 30 June 2006, para. 304. A similar approach had already been taken by the International Military Tribunal for the Far East (IMTFE), see: IMTFE, Röling/Rüter, 29–31; Duttwiler, IntCrimLRev 6 (2006), 55–6; Weltz, Die Unterlassungshaftung im Völkerstrafrecht, 301–306. 203 ICTR Rutaganira, TC, 14 March 2005, paras 78–84; Duttwiler, IntCrimLRev 6 (2006), 55–6.

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Article III 65–67 under domestic law have also been taken into consideration.204 This approach finds solid support in domestic law, as several national legal systems use legal duties from beyond criminal law as a constituent element in establishing criminal liability for omission.205 Nevertheless, this approach is at odds with legal methodology and fundamental principles of international law, and gives rise to numerous frictions and inconsistencies.206 66 First, by combining the legal requirements of two distinct rules from different legal fields, any international court inevitably exceeds its competence, as it de facto creates a new rule. Reliance on non-criminal duties by the ICC or ICJ would therefore amount to quasi-legislation and an ultra vires exercise of judicial power. Second, from a normative perspective, it seems difficult to grasp that a certain inaction which would normally not be punishable at all should turn into one of ‘the most serious crimes of concern to the international community’207 if combined with a legal duty whose non-fulfilment would normally not be criminal either. Moreover, deriving criminal responsibility for omissions through reliance on duties extraneous to criminal law seems inconsistent insofar as the commission of an offence through action presupposes a duty of international criminal law, while committing the same crime by omission could be based on duties far remote from the sphere of international criminal law. Further, as regards obligations under the law of armed conflict and human rights law, it seems questionable in the first place if such duties are incumbent on individuals at all, or rather seek to create obligations on states.208 Even if they can be held to impose duties immediately upon the individual, however, attention must be drawn to the fact that they differ greatly in weight and how precisely and absolutely they are spelt out. In fact, some provisions open up a broad scope for interpretation.209 Treating them all alike in order to put omission on a level with a criminal act would hence run into normative frictions. Furthermore, establishing war crime responsibility for omission through reliance on duties under the law of armed conflict could also lead to reluctance among states to accept the existence of such duties in the first place because actual criminal sanctions for failing these duties may prove a serious disincentive. In this respect, creating an automatic juncture to war crimes may not be such a wise policy choice for bolstering individual duties under the law of armed conflict.210 67 Finally, drawing upon duties under domestic law gives even greater cause for concern. Reliance on domestic law would ultimately leave it with national legislators to define the scope of individual criminal responsibility for omission, which would clearly undermine the idea of globally consistent application of international criminal law. Apart from that, lightly transplanting norms of national law into international law ignores the truism that international law can only flow from the recognized sources, that is: treaties, custom or general principles.211 204

ICTY Mrksˇic´ et al., TC, 27 September 2007, para. 668, fn. 2157; ICTR Bagambiki, TC, 25 February 2004, paras 60, 660; ICTR Rutaganira, TC, 14 March 2005 para. 82; Duttwiler, IntCrimLRev 6 (2006), 55–6; Weltz, Die Unterlassungshaftung im Völkerstrafrecht, 301–6. 205 Duttwiler, IntCrimLRev 6 (2006), 30–45. 206 For a detailed critique of the prevailing approach, see: Berster, IntCrimLRev 10 (2010), 625–32. 207 Preamble para. 4 ICC Statute; Article 1 ICC Statute. 208 For more details, see: Berster, IntCrimLRev 10 (2010), 626–8. 209 See, for instance, Article 14 para. 2, 15, 29 GC III; Article 36 Add. Prot. I. 210 For more details, see: Berster, IntCrimLRev 10 (2010), 629. 211 For more details, see: Berster, IntCrimLRev 10 (2010), 629–31.

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In view of such substantial flaws, an alternative approach has been submitted.212 It starts from the seeming commonplace that treating acts and omissions as the same criminal offence amounts to equating the two modes of commission for the purposes of criminal law. This leads to the conclusion that criminal responsibility for omission can only be established on the basis of a criterion that justifies such equal treatment because it captures the rationale underlying criminal responsibility for active perpetration. As outlined above, in its unfolding case law, the ICC has consistently referred to the doctrine of control of the crime as the overarching criterion.213 Accordingly, it should also be drawn upon as the tool for establishing criminal responsibility where a person fails to act. In order to glean clear-cut duties from the overarching principle of control, reference can be made to the specific structures of the social world, which give rise to surprisingly few manifestations of control. A review of all conceivable scenarios reveals that control can only result from two basic factual scenarios: On one hand, helplessness and vulnerability may put the victim at another person’s mercy, thereby furnishing that person with what may be called ‘custodial control’. On the other, a person may also be in command of a source of danger and thus possesses what may be referred to as ‘security control’. In a second step, these two basic categories may be broken down into subsets. ‘Custodial control’ may be divided into subcategories according to the grounds for helplessness and the method in which the other person established his or her control over the helpless one. Helplessness may either result from coercion imposed by others (e. g., detention), or an inherent weakness (age, disease, injury etc.), while the acquisition of control may either occur by way of intrusion into the victim’s sphere (e. g., by depriving a person of its physical liberty) or by way of assumption of responsibility (e. g., by taking over the command of a POW camp). By the same token, subsets of ‘security control’ may be shaped by looking at the particular grounds for control and the method of its acquisition. With respect to the grounds for control, a distinction must be made between dangerous persons and objects: While control over objects necessarily implies control over dangers emanating from them, control over persons and consequently the hazards by them requires power over their will. Such a power may result from mental deficiencies of the other person or it may flow from the subordination of the controlled person under the orders of the person in control (e. g., within a military hierarchy). Finally, just as in the case of custodial control, security control may be obtained originally or in a derivative manner through transfer from a third person. By this means, a set of relatively clean-cut constellations evolves in which the person omitting to prevent a course of action controls the events in a like manner to an active perpetrator, and should hence be treated as equally responsible. Besides its logical merit, this concept offers the advantage of avoiding all the manifold inconsistencies of the prevailing approach outlined above. It is also perfectly in line with the concept of ‘superior responsibility’ as the only firmly established 212 In essence, the approach undertakes to transform a concept first introduced by Schu ¨ nemann in 1971 (Schu¨nemann, Grund und Grenzen der unechten Unterlassungsdelikte) into international criminal law. For more details, see: Berster, IntCrimLRev 10 (2010), 632–46; Berster, Die vo¨lkerstrafrechtliche Unterlassungsverantwortlichkeit, 148–60. See also Ambos, Treatise on International Criminal Law, Vol. I, 195–197. 213 Supra, mns 18, 20.

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Article III 71–74 instance of culpable omission in international criminal law. The ICTY has repeatedly considered the power to control the acts of subordinates as the underlying principle of superior responsibility.214 Similarly, Article 28 ICC-Statute features the formerly unwritten requirement of ‘effective authority and control’ and thereby underscores the prominence of the control element in this context.

VI. ‘Joint criminal enterprise’ The rudimentary rules on criminal participation given by the statutes of the ad hoc tribunals for the former Yugoslavia and Rwanda do not explicitly embrace basic rules on co-perpetration and commission through another person, and are hence ineligible to capture modes of participation that typically occur in macro-criminal scenarios. In order to fill the gap, the tribunals devised and gradually refined the concept of joint criminal enterprise (JCE) as a subset of ‘commission’ under Article 7 para. 1 ICTY-Statute and Article 6 para. 1 ICTR-Statute, respectively.215 Aside from the rather shaky legal basis in its Statute, in Tadic´ the ICTY Appeals Chamber found all forms of JCE to be rooted in customary international law.216 In broad terms, JCE requires three material elements: (a) a plurality of persons, (b) a common plan, design or purpose to commit one or several crimes under international law, and (c) a contributive act within the framework of the common plan. 73 Proceeding from these basic prerequisites, the ad hoc tribunals shaped three subsets of JCE. The ‘basic form’ (JCE I) applies when a plurality of persons agree to commit a crime and execute it with the corresponding intent to effect the common purpose.217 Regarding the objective premises for individual contribution to JCE I, a possible change of paradigm can be observed. Formerly having consistently held that any act that ‘in some way directed towards the furthering of the common plan’ was sufficient,218 the ICTY Appeals Chamber raised the threshold considerably in its Brd-anin judgment in 2007, determining that anything short of a ‘significant’ contribution to the jointly committed crime shall not be considered in terms of JCE I.219 74 The ‘systemic form’ (JCE II), often perceived as a variant of the first form,220 is characterized by the existence of an organized system of ill-treatment (typically a concentration or detention camp) which serves as the manifestation of a common 72

214 ICTY Mucic ´ et al., TC, 16 November 1998, para. 377: ‘The doctrine of command responsibility is ultimately predicated upon the power of the superior to control the acts of his subordinates.’ See also ICTY Strugar, TC, 31 January 2005, para. 359. 215 ICTY Vasiljevic ´, AC, 25 February 2004, para. 103; ICTY Kvocˇka et al., AC, 28 February 2005, para. 79; ICTY Stakic´, TC, 31 July 2003, para. 432. 216 ICTY Tadic ´, AC, 15 July 1999, para. 220. 217 Werle, Int’l Criminal Law (2nd ed.), para. 460. 218 ICTY Tadic ´, AC, 15 September 1999, para. 229; ICTY Krnojelac, AC, 17 September 2003, para. 33; ICTY Vasiljevic´, AC, 25 February 2004, para. 101; ICTY Babic´, AC, 18 July 2005, para. 38. 219 ICTY Brd-anin, AC, 3 April 2007, para. 430. In the meantime, this finding has met with acclaim not only within the ad hoc tribunals subsequent jurisprudence (ICTY Milotinovic´, TC, 26 February 2009, paras 273, 460, 615), but also by the ECCC (Decision on the Appeals against the Co-Investigating Judges Order on Joint Criminal Enterprise (JCE), PTC, 20 May 2010, para. 38). This recent development gives occasion for rethinking the widespread understanding that the major differences between the different forms of JCE lie in their divergent mens rea requirements; see, for instance: Satzger, Int’l and Eur. Crim. Law, § 13, mn. 57 (237). 220 ICTY Tadic ´, AC, 15 September 1999, para. 203.

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criminal plan. Objectively, active participation in the implementation or maintenance of the system is required. As regards intent, it is sufficient that the participant is aware of the criminal nature of the system and acts with the intent to further the common concerted design.221 The distinctive feature of JCE II hence lies in the fact that all individual crimes occurring in the course of the ordinary operation of the system can be attributed to each participant, irrespective of whether or not the intent of the individual specifically embraced these crimes. The ‘extended form’ (JCE III) refers to crimes of a JCE-member which are not 75 covered by the common purpose. According to the ICTY, such crimes can nevertheless be imputed upon any other JCE participant, provided that the excessive act was a natural and foreseeable consequence of the common plan and that he willingly took that risk.222 The role of JCE in the interpretation and application of Article III is difficult to 76 fathom. On the one hand, its dominant role within the jurisprudence of the ad hoc tribunals and some hybrid courts223 cannot lightly be swept aside and is bound to continue having an effect well beyond the Tribunals’ approaching closure. Moreover, some of the few convictions for genocide were actually based upon this concept.224 On the other hand, serious concerns call for restraint in applying JCE in the Genocide Convention. At the outset, the concept of JCE defies definite ascription to any of the acts under Article III. While the Convention stipulates a distinction between perpetration and complicity, the concept of JCE oscillates between both. The ICTY Appeals Chamber, in its ground-breaking Tadic´ judgment, remained remarkably indecisive as to the legal nature of its finding and fluctuated between ‘committing’ and accomplice liability.225 The same indecisiveness exists in academic writing, with some considering JCE a form of principal liability, others regarding it as a form of complicty, and yet others deeming it a hybrid mode of responsibility, involving aspects both positions.226 Furthermore, for the same reason, JCE is not fully reconcilable with Article 25 ICC-Statute, which reflects the most advanced expression of international opinio iuris regarding the modes of participation in international criminal law. Some authors even go as far as submitting that the ICC-Statute does not provide for any legal basis for JCE.227 Aside from such these technical issues, JCE also raises concerns of a truly 77 fundamental nature. Its ill-devised nature can be clearly brought to light by joint consideration of two fundamental principles of (international) criminal law. Firstly, it should be incontestable that the scope of criminality in international law is exhaustively set out by the definitions of international crimes. Hence, the criminality of a ‘joint criminal enterprise’ necessarily flows from and is defined by the criminality of the acts which the JCE-members agree to perform. Secondly, it should be self-evident that liability for any sort of active participation in a crime 221

ICTY Tadic´, AC, 15 September 1999, para. 203. ICTY Tadic´, AC, 15 September 1999, paras 220–1. 223 SCSL Sesay et al., TC, 2 March 2009, paras 254–5; ECCC Thirith et al., PTC 38, 20 May 2010, paras 36–89. 224 See, for instance: ICTR Simba, TC, 13 September 2005, para. 419. 225 See: van Sliedregt, JIntCrimJust 5 (2007), 189. 226 See: van Sliedregt, JIntCrimJust 5 (2007), 189–90; 199–203. 227 Satzger, Int’l and Eur. Crim. Law, § 13, mn. 58 (238). 222

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Article III 77–79 requires at least some minor objective contribution to the crime’s execution or attempted commission.228 On these premises, criminal liability within a joint enterprise can only be incurred insofar as the requisite member actually contributes to each crime the JCE is composed of. In its present form, however, the concept of JCE allows a JCE-member to be punished for a criminal act even where he does not contribute at all in its completion. To put it bluntly: By raping a victim, offender A may incur liability for the murder committed kilometres away by offender B, provided that both crimes fall within the scope of a JCE. Such a result violates either one of the aforementioned principles: It either holds persons liable for defined crimes despite the absence of any contributive act, or it holds persons liable for contributing to something (the JCE) which is not a defined crime under international criminal law. 78 This serious inconsistency is potentiated by an unfortunate tendency in international case law to interpret macro-criminal occurrences as ‘vast enterprises’.229 Applied to the crime of genocide, as it stands, the concept of JCE would well allow the conviction of a person for killing one million people because he contributed to a genocidal JCE by causing serious bodily harm to two members of the protected group. 79 As well as these general aspects, JCE III in particular has received particular criticism in the scholarly debate, as it is largely seen to overextend criminal attribution and thus violate the principle of individual guilt.230 Moreover, its derivation from customary international law has met with protest inter alia by Chambers of the Extraordinary Chambers in the Courts of Cambodia (ECCC).231 But even aside from such concept-based concerns, the specific intent-requirement of genocide can also rise to friction. The issue resembles the previous question as to how to reconcile the specific intent with the ‘should-have-known’-standard of superior responsibility, and just like in that instance, international case law is divided on this point. While the ICTY Trial Chamber in Stakic´ felt that ‘[c]onflating the third variant of joint criminal enterprise and the crime of genocide would result in the dolus specialis being so watered down that it is extinguished.’232 On the other hand, in Brd-anin the ICTY Appeals Chamber ruled that genocide may well be committed by means of JCE III.233 228 This is supported particularly by the ‘weakest’ form of participant liability provided by Article 25 para. 3 lit. (d) ICC-Statute (‘In any other way contributes to the commission or attempted commission of such crime by a group of persons acting with a common purpose. …’ 229 Satzger, Int’l and Eur. Crim. Law, § 13, mn. 58 (238). 230 See: Ambos, Internationales Strafrecht (3rd ed.), § 7 mns 32–3 (165–7); Ohlin, JIntCrimJust 5 (2007), 85–88; Danner/Martinez, CalLR 93 (2005), 134–7, 137: ‘If conspiracy is the darling of the U.S. prosecutor’s nursery, then it is difficult to see how JCE can amount to anything less than the nuclear bomb of the international prosecutor’s arsenal.’ 231 ECCC Nuon et al., TC, 12 September 2011, para. 38; ECCC Thirith et al., PTC 38, 20 May 2010, para. 83. Please note that these decisions refer to the existence of JCE III as a part of customary law prior to 1975. For further references, see: Werle, Int’l Criminal Law (2nd ed.), para. 464, fn. 215. 232 ICTY Stakic ´, TC, 31 July 2003, para. 530. Similarly: ICTY Brd-anin, TC, 28 November 2003, para. 29. See also: Satzger, Int’l and Eur. Crim. Law, § 13, mn. 58 (238), to whom applying JCE III to the crime of genocide is ‘inacceptable from the outset’ as it drastically lowers the subjective threshold of criminal liability. 233 ICTY Brd-anin, AC, 19 March 2004, para. 7.

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Article IV Persons committing genocide or any of the other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals. Table of Contents: A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Personal scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘persons’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘committing …’............................................................ II. Explicit legal consequences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘shall be punished’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. Criminal law aspects in general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. The ‘duty to (ensure) punish(ment of)’ perpetrators. . . . . . . . . . . . . c. Criminal law aspects for possible perpetrators . . . . . . . . . . . . . . . . . . . . d. Indications regarding state liability for genocide. . . . . . . . . . . . . . . . . . 2. ‘whether they are constitutionally responsible rulers, public officials or private individuals’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. Constitutionally responsible rulers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Public officials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c. Private individuals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Implied legal consequences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Article IV and immunities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. Immunities under national law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Immunities under international law, particularly before foreign domestic courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c. Immunities and international criminal proceedings. . . . . . . . . . . . . . d. Interim conclusions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. (Other) defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. Official capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Superior orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c. Further defences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Mitigating and aggravating factors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Statutory limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D. Concluding observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

mn. 1 5 11 16 18 20 22 24 25 28 33 35 37 38 40 42 44 45 47 50 60 62 63 64 65 67 68 71 73

A. Introduction Article IV is a significant provision of the Genocide Convention, denying 1 impunity to alleged perpetrators of genocide irrespective of the personal status of the individual. As such, states are under a duty to punish alleged perpetrators whether they are constitutionally responsible rulers, public officials or private individuals; this might be termed a rule of prima facie equal treatment.1 Fundamentally important legal issues regarding whether this provision admits any exceptions and issues regarding the establishment of the actus reus and mens rea all necessarily arise as a result of Article IV and will be examined in the following sections. 1

Schabas, Convention (Introduction), 3.

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Article IV 2–6 Article IV links the substantive and procedural provisions of the Convention. In addition, Article IV is the first provision to address the practical implementation aspects of the Convention as opposed to the more general legal substantive provisions. Beyond the general obligation to punish perpetrators of genocide, Article IV contains implied duties for states with regard to giving effect to this provision which also fall to be examined. 3 Additionally, Article IV utilises definitions set out in Articles II and III as well as fleshes out the definition of a perpetrator by the rule of prima facie equal treatment. Article IV, as the link between the substantive and the procedural provisions, touches upon some procedural issues that will be addressed in more detail in relation to Articles V and VI. 4 Furthermore, considerations regarding the general nature of the wording of Article IV, namely that the aforementioned implied duties imposed on states should have been more carefully enumerated, are addressed. Doing so it is argued that Article IV, despite its criticisable wording, can be consulted to broadly answer the most relevant questions on the punishment of ge´nocidaires. Apparently unlike the major scholarship this commentary seeks to apply a progressive interpretation focussed on the wording, context and purpose of Article IV and therefore assumes the inherent principle of an absolute prohibition of impunity for ge´nocidaires. However, the aspect of prosecuting (which is different to punishment) is regarded as a matter of Article VI and shall be addressed in the respective chapter. 2

B. Drafting history 5 Early indications regarding those who could be held responsible for genocide were given in GA Resolution 96(I) which stated: ‘The General Assembly, therefore, Affirms that genocide is … and for the commission of which principals and accomplices – whether private individuals, public officials or statesmen, … – are punishable’.2

As such it is clear that from the outset the crime of genocide under the Convention was conceived of as a crime capable of being committed by individuals regardless of whether they were acting in an official or private capacity to which immunities did not apply. 6 The Draft Convention prepared by the UN Secretariat in May 1947 and adopted by the Secretary General of 26 June 19473 accordingly took the same position: ‘Article IV: [Persons liable] Those committing genocide shall be punished, be they rulers, public officials or private individuals.’

The prima facie equal treatment of alleged perpetrators from this point onwards was set out in a standalone provision. There was broad agreement on this principle with only limited exceptions such as Donnedieu de Vabres who argued that only rulers should be punishable for genocide, whereas other persons should be prosecuted for homicide.4 2 UN Doc. A/RES/96(I) (emphasis in original); see also Robinson, Genocide Convention, 17–8 and 121, (emphasis in original). 3 UN Doc. E/447; see also Robinson, Genocide Convention, 122–30. 4 UN Doc. E/447, 35.

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7–11

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However there was considerable disagreement regarding draft Article V intended 7 to be read together with Article IV to the effect that ‘command of the law or superior order shall not justify genocide’.5 In the following Draft Convention prepared by the Ad Hoc Committee, however,6 8 the provision on superior orders was removed and the principle of equal treatment set out in Article V: ‘Article V: [Persons liable] Those committing genocide or any of the other acts enumerated in Article IV shall be punished whether they are heads of State, public officials or private individuals.’

The only substantive change was that the term ‘ruler’ was replaced with ‘heads of State’ to ensure linguistic continuity with other language versions.7 Broadly, the general principle of equal treatment remained uncontroversial. A proposal by the Soviet Union to reintroduce a provision stating that ‘command of the law or superior orders shall not justify genocide’ was rejected on the basis that it would endanger the stability of state institutions. Furthermore, the majority argued that individuals only obeying superior orders did not possess the required mens rea for genocide.8 In the final version, ‘heads of State’ was replaced by the original ‘rulers’, qualified 9 by the addition of the term ‘constitutionally responsible’9 which excluded monarchs from the scope of this provision,10 the earlier argument regarding linguistic continuity having been set aside.11 Ultimately, whilst the exact terminology was much discussed and debated during 10 the drafting of this provision, it is clear that the underlying principle met with general consensus.12

C. Interpretation In requiring that perpetrators of genocide ‘shall be punished’, Article IV adopts 11 unequivocal language. Of the various provisions designed to implement the Convention’s goal – reflected in the title, its Preamble and Article I – of ensuring the punishment of (perpetrators of) genocide, it seems the most ambitious. In requiring states to ensure that perpetrators ‘shall be punished’, the Convention goes some way in reaching one of its two main aims. The subsequent considerations proceed from this assumption. They intend to take due account of the provision’s wording, grammar and systematic structure. This approach at times questions conventional wisdoms, which have often subordinated Article IV to another provision aimed at ensuring the punishment of perpetrators, namely Article VI (requiring, under certain circumstances, the prosecution of alleged ge´nocidaires). As will be shown, Articles IV and VI are indeed linked, but they can be read to reinforce one another. 5

UN Doc. E/447, 8. UN Doc. E/794, see also Robinson, Genocide Convention, 131–7. 7 UN Doc. E/794, 24; in this draft ‘heads of State’ corresponds with the French version’s ‘chefs de l’E´tat’, whereas before ‘rulers’ had to correspond with ‘gouvernants’. 8 UN Doc. E/794, 25; see also infra, mn. 66. 9 UN Doc. A/C.6/SR.95. 10 Gaeta, in: Gaeta, Genocide Convention, 315–6; Robinson, Genocide Convention, 70. 11 The French version of Article IV again uses the term ‘gouvernants’ – even without any relation to an equivalence of ‘constitutionally responsible’. The same is valid for the Spanish version (‘gobernantes’). 12 Schabas, Genocide in Int’l Law (2nd ed.), 83, 373. 6

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Article IV 11–16 What is more, Article IV has an autonomous legal meaning that is not exhausted by the duty to prosecute in the sense of Article VI. Based on this assumption, the subsequent considerations suggest ways of better realising the normative potential of Article IV. 12 Article IV imposes an obligation on all member states to punish ge´nocidaires regardless of their personal status. The following sections examine the personal and substantive aspects of this obligation. In addition to the legal consequences set out in Article IV for those persons ‘committing’ genocide, a number of implied legal consequences as well as a number of related issues also fall to be considered in the following section. 13 In relation to Article IV, two main issues are particularly controversial and should be mentioned already at this stage of interpretation: the ‘duty to punish’ ge´nocidaires and the inapplicability of immunity13 in genocide trials. 14 The ‘duty to punish’ is often described rather vaguely. Sometimes it is even treated as a synonym of the ‘duty to prosecute’ as set out in Article VI. However, such an ‘equalising’ reading does not do justice to the Convention’s fine textual distinctions. It is not clear, though, whether the ICJ makes such a distinction. However, in respect of the ‘duty to punish’, the Court considered in its judgment on the Genocide case that there is an ‘obligation to punish the crime of genocide stemming from Article I and the other relevant provisions of the Convention.’14

As argued elsewhere, the duty to punish is imposed by Article I, but not concretised by that provision.15 This concretisation is achieved – as the Court noted – by ‘other relevant provisions’. Among these ‘other provisions’, Article IV is central. From its terms, read in line with Article VI, it is possible to deduce a meaningful duty to punish ge´nocidaires, which can be described as a ‘duty to ensure punishment’. Whilst Article VI focuses on the procedure to be employed (i. e. prosecution as the consequence that suspects ‘shall be tried’) to arrive at the punishment, Article IV formulates the normative result to be achieved: perpetrators of genocide ‘shall be punished’. This formulation is the starting point of assessing the scope of states’ duties under the Convention. 15 The issue of immunity is not directly addressed by Article IV. The provision does not, for example, expressly suggest that ‘immunity does not preclude genocide trials’. However, the role of immunity can be deduced from the sentence that ge´nocidaires ‘shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals’. As immunity is not explicitly mentioned, it is addressed here as an ‘implied legal consequence’.

I. Personal scope 16 The personal scope of Article IV relates to the category of persons who can be punished under the Convention. Article IV is first and foremost directed to member 13 Unlike most scholars and courts, Schabas, Genocide in Int’l Law (2nd ed.), 369–71, argues that Article IV only covers the defence of ‘official capacity’ while immunity is not addressed. Although this view is not shared, the arguments on the scope of Article IV are basically the same for immunity and official capacity. 14 ICJ Reports 2007, 226 (para. 439). 15 Article I, mns 24–30.

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states who are placed under an obligation to act whenever a person covered by Article IV commits the crime of genocide as defined under the Convention is present within their jurisdiction.16 In defining its personal scope, Article IV addresses two questions with important 17 consequences for the rest of the Convention. Firstly, it defines which ‘persons’ having committed genocide can be punished under the Convention. Being the first provision to mention ‘persons’, this definition is subsequently applicable to any other mention of ‘persons’ under the Convention.17 Secondly, Article IV provides an exact definition for the general (scholarly) term ‘ge´nocidaire’, which can be described as any person ‘committing genocide or any of the other acts enumerated in Article III’ in the sense of Article IV. 1. ‘persons’ The term ‘persons’ is not further elaborated on in the Convention. The only 18 condition is that the person in question has committed genocide or a related act ‘enumerated in Article III’. The annex ‘whether they are …’ does not grammatically refer to the word ‘persons’ but to the sentence formulating the consequence that they ‘shall be punished’. This is the same for the equally authoritative18 English, French and Spanish versions of Article IV. In other words, the personal status of a perpetrator does not affect the need for punishment. In line with Article V, state parties have to ensure that their domestic criminal laws provide for effective penalties for perpetrators of genocide or related acts.19 These domestic laws must, as a minimum, apply to ‘constitutionally responsible rulers, public officials or private individuals’, as Article IV clarifies. While all this seems agreed, Article IV refers to ‘persons’, which seems to cover 19 both natural and legal persons. And indeed, while natural persons are the more relevant category, a proper reading suggests that the provision does not preclude states from imposing criminal liability for genocide also on corporations. Whilst the formulation ‘whether they are …’ refers to natural persons only, it does not mean other persons (including legal persons) could not be covered. This has happened in many areas of law in numerous domestic legal systems,20 where legal persons such as corporations are capable of complicity in genocide, for instance.21 From the perspective of international criminal law, nothing stands in the way of such domestic legislation. Corporate criminal liability is not unknown in international criminal law;22 it was an issue during the Nuremberg trials,23 it was discussed 16

See on jurisdiction Article VI, on extradition Articles VI and VII. In its Articles IV, V and VI. 18 (At any rate) in case of ambiguities, according to Article 33 para. 4 VCLT, the authentic language versions have to be compared and to be interpreted in the light of the purpose of the treaty, see on the example of the UN Charter Schiffbauer, Vorbeugende Selbstverteidigung, 291–306 (and the short English summary at 454–6); see also Article X, mns 7–9. 19 See further Article V, mns 35–49. 20 Stoitchkova, Corporate Liability, 29–30; Weigend, JIntCrimJust 6 (2008), 927–9. 21 In practice it can be well imagined that an economically strong corporation, e. g., plans to exploit a natural resource on the land of an indigenous group and therefore takes measures to make that group disappear as a whole. Kelly, CaseWResJIL 43 (2010–2011), 483, gives some recent examples of corporations allegedly supporting the commission of genocide. 22 See in general Nerlich, JIntCrimJust 8 (2010), 895; Weigend, JIntCrimJust 6 (2008), 929. 23 Stoitchkova, Corporate Liability, 43–63. 17

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Article IV 19–22 during the travaux of the Genocide Convention24 and it is currently a live issue in relation to the interpretation and development of the ICC Statute.25 That said however, as explored elsewhere in more detail, the international regime governing state responsibility does not, in its present stage, envisage the criminal responsibility of states for internationally wrongful conduct. 2. ‘committing …’ Article IV restricts the personal scope of the provision to those persons ‘committing genocide or any of the other acts enumerated in Article III’. As the equivalent reference in Articles II and III shows, it is irrelevant whether the pertinent person is a perpetrator in a narrow sense or an accomplice. The term ‘perpetrators’ shall be understood as encompassing both Articles II and III. The key term is ‘committing’, meaning that an act of genocide must have been supported or carried out by the person in question.26 The use of the present (‘committing’) as opposed to perfect form (‘having committed’) cannot be taken to mean that the act of commission still has to continue. Not only would it this run counter to the idea of punishment for completed crimes. It is also clear from the use of more precise terminology in the authentic language versions. The French and Spanish versions use ‘ayant commis’/ ’hayan cometido’; just as the revised Chinese version of the Convention27 clarifies that ongoing and completed acts of genocide are punishable. 21 Furthermore, Article IV does not refer to persons merely ‘suspected’ of or ‘charged’28 with genocide, but uses ‘committing’. This means that the commission of genocide or any of the related acts must actually have been proved. It is only after the facts have been established, that the duty to punish arises.29 It is implicit in this that notwithstanding the gravity of the charge, those suspected of genocide or related acts have a right to a fair trial.30 This means that a criminal sanction may not be applied as long as a conviction is not definitive. While Article IV (nor any other provision of the Convention) does not say so expressly, it follows from human rights guarantees, which benefit persons irrespective of the character of the charge. It is also clear from Article V, which requires ‘effective penalties’ for persons ‘guilty’ of genocide, i. e. presupposing a conviction. 20

II. Explicit legal consequences 22 Article IV sets out explicit legal consequences that follow for any person covered under this provision having been found to have committed genocide. Article IV also contains one of the core duties of the Convention, namely that each state party to the Convention must ensure that these consequences follow. Whilst Article IV sets out the duty to punish perpetrators of genocide, it is silent as to the means of punishment. These are addressed by Article V, which obliges 24

Kelly, CaseWResJIL 43 (2010–2011), 485–9. Stoitchkova, Corporate Liability, 65–138. 26 Oxford Dictionary, 350 (‘commit’, para. 1). 27 See the authentic language versions reproduced in Annex 1. 28 This formulation is used in Article VI, mns 10–13. 29 According to Article V, ‘effective penalties’ must be provided for persons ‘guilty’ of genocide, i. e. after a conviction; see Article V, mn. 38. 30 See further on the principle of fair trial inherent to the Convention Article VI, mn. 20. 25

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states to enact national legislation to ensure effective penalties for ge´nocidaires. Seen in that light, Articles IV and V correlate: Article IV requires states to punish ge´nocidaires and thereby grounds the duty to enact national legislation laid down in Article V. Article V, in turn, is required for states to comply with their duty to punish ge´nocidaires, as this duty will typically be enforced on the basis of domestic criminal law. The wording of Article IV requires closer attention in relation to the obligation 23 imposed on states that perpetrators ‘shall be punished’ which raises questions as to the appropriate contents and scope of this duty. Moreover, it is important to note who exactly falls under the list of explicitly mentioned persons (‘whether they are …’). Such issues are addressed in the following section. 1. ‘shall be punished’ The formulation that ge´nocidaires ‘shall be punished’ invokes punishment under 24 (national and international) criminal law. As such, whilst legal as well as natural persons may be encompassed by the definition under Article IV,31 only individuals must be punished under Article IV. As a consequence, certain criminal law aspects emanate from this precondition, foremost the state parties’ duty to (ensure) punish(ment of perpetrators). What is more, certain indications with regard to state liability for genocide can be derived from Article IV. a. Criminal law aspects in general Crucially, Article IV establishes a prohibition of impunity for genocide and 25 related acts. Punishment of ge´nocidaires is mandatory as shown by the word ‘shall’ and its counterparts in the French (‘seront’) and Spanish (‘sera´n’) version. There is no discretion granted as to whether to set up a penalty. That said, the operation of Articles IV, V and VI requires effective penalties for the commission of genocide for those found guilty necessarily entails a legal assessment of guilt. As such, defences32 or limitations of jurisdiction33 of a defendant taken from general law still remain a relevant issue notwithstanding the principle expressed by Article IV and will be assessed in later sections. The circumstances precluding punishment for genocide mentioned in Article IV 26 are derived from the special personal status of the individual, and are not specific to the crime of genocide. In removing such protections precluding punishment for genocide Article IV is necessarily addressed at discounting the personal status of alleged perpetrators. Further, member states are precluded from allowing special defences or other 27 privileges (like immunities34) for ge´nocidaires in municipal criminal law, as a result of the stipulation that alleged perpetrators ‘shall be punished’ which leaves no room for state discretion in this regard. Thus, in short, Article IV restricts the discretion of states with regard to circumstances precluding punishment of ge´nocidaires.

31

Supra, mn. 19. Infra, mns 63-67. 33 On immunities infra, mns 45-62; on jurisdiction in general see Article VI. 34 More details infra, mns 47-49. 32

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Article IV 28–31 b. The ‘duty to (ensure) punish(ment of)’ perpetrators Article IV prescribes that that perpetrators ‘shall be punished’, but does not say who is to hand down and enforce this punishment. The most obvious link is with states that prosecute perpetrators. However, Article IV is not specifically addressed to prosecuting states (as it could easily have been). Instead, it uses the passive voice (‘shall be punished’). Proceeding from this use of terminology, it is argued that Article IV imposes a two-fold obligation: a general duty, imposed on all states, to ensure punishment of perpetrators; and a specific duty, imposed on state parties with mandatory jurisdiction over ge´nocidaires, to actually apply punishment through prosecution. The subsequent sections explore this approach. 29 Grammatically, the formulation ‘shall be punished’ is written in passive voice (which is the same in all other authoritative language versions) and thus addressed to an indefinite circle of states. As the Genocide Convention can only bind member states, the circle of addressed states is restricted to state parties. But among them, Article IV does not provide for any further distinction. Thus, the requirement that ge´nocidaires ‘shall be punished’ applies to each and every state party to the Convention. But of course, in a system imposing punishment after criminal prosecution, only a state prosecuting ge´nocidaires is indeed capable of imposing punishment itself. (As set out in the commentary to Article VI, territorial states are required to prosecute ge´nocidaires, while other states remain free to do so based on other heads of jurisdiction.35) Where states prosecute themselves, Article IV requires them to impose and apply punishment strictu sensu. This may be seen as the ‘specific’ or ‘primary’ duty flowing from Article IV. 30 The provision does not stop there, though. A prosecuting state’s specific, primary duty to punish does not relieve other state parties from complying with Article IV. If the use of terminology (‘shall be punished’) is taken seriously, Article IV, independently from jurisdictional matters, imposes a general duty to cooperate and particularly to contribute to the final aim of punishment (the latter eventually performed by another state or tribunal). This general, or subsidiary, duty is ancillary to the primary duty to punish strictu sensu, but it binds a much broader circle of states. Taken together, the primary and subsidiary components can be read to impose a duty on state parties to ‘ensure punishment’ of ge´nocidaires. Put differently, every state party is required take all possible measures so that punishment can finally be applied.36 31 This understanding of Article IV is supported by teleological considerations as it alone ensures the effective punishment of ge´nocidaires, which – as the Preamble notes – is to be achieved through measures of ‘international co-operation’. If Article IV did not bind all state parties, the Convention’s goal of effective punishment could easily be undermined. By way of illustration, one need only imagine an act of genocide being committed in state A, with perpetrators having fled to state B. Pursuant to Article VI, state B itself is not necessarily required to exercise jurisdic28

35

See Article VI, particularly mns 45–52. States might, inter alia, have to extradite suspects to the state of jurisdiction or provide assistance in the criminal procedure also in other member states, e. g. by presenting evidence or even waiving immunities of its own nationals, and of course cooperating with international criminal tribunals, infra, mn. 44; see also Article VI, mns 54–62. 36

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tion over the perpetrators.37 If Article IV applied only to prosecuting states, this would be the end of the matter: by doing nothing, state B could simply impede the Convention’s comprehensive purpose. One wonders what would remain of the Convention’s goal to ensure that ge´nocidaires ‘shall be punished’. By contrast, the argument set out above is much better able to meet the Convention’s aim of punishment. In line with it, state B (while not required to prosecute itself) is under a duty to cooperate towards the punishment if another state (such as state A or states C to Z) exercises jurisdiction. By doing nothing, state B would be in breach of its obligation under Article IV. Of course, the overall duty to ensure punishment (viz. the primary duty to punish 32 as well as the subsidiary cooperation duties) cannot stand alone. It is part of the last step of criminal investigations leading to the prosecution and eventually conviction of (alleged) perpetrators. Considering this, the duty to ensure punishment is embedded in the procedural framework of ‘punishment through prosecution’ designed by Article VI. Being general in application, and encompassing a broad range of contributory measures, the duty to ensure punishment can shape different more specific obligations, including the principle of aut dedere aut judicare. These are subject to the interpretation of Article VI and therefore assessed in the commentary to that provision.38 c. Criminal law aspects for possible perpetrators Crucially, Article IV has direct legal effect also for individuals39 since the creation 33 of a punishable offence for which states have no discretion but to punish creates the corresponding duty on individuals not to commit this crime.40 Consequently, the formulation ‘shall be punished’ established – for the first time – a directly applicable international law duty upon individuals.41 Furthermore, as genocide has been established as an international crime that as 34 such generally requires punishment, ge´nocidaires may not successfully invoke the principle of nullum crimen sine lege, meaning that retroactive effects are prohibited in a fair trial. This issue indeed has not been invoked in practice since the adoption of the Convention.42 d. Indications regarding state liability for genocide In addition to the undisputed role of Article IV regarding criminal law, what is 35 not mentioned in Article IV is also instructive. Namely, Article IV is completely silent on the issue of state liability. Dealing exclusively with matters of criminal law, member states are addressed to enforce punishment for ge´nocidaires; but they cannot be punished themselves. As already shown, whilst Article IV is open to 37

Article VI, mn. 58. Article VI, mns 60–62. 39 Edwards, OhioNULRev 8 (1981), 300, 307. With respect to corporations, however, such an obligation cannot be assumed, see also Nerlich, JIntCrimJust 8 (2010), 896–9. 40 See also the profound discussion on the (similar) duty to states not to commit genocide: Article I, mns 51–82. 41 Edwards, OhioNULRev 8 (1981), 300, 306–7. 42 For more on the Convention’s temporal scope of application (especially as regards state obligations) see General Introduction, mns 39–49. 38

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Article IV 35–38 corporate criminal liability, it only demands punishment for individuals.43 However, optional corporate criminal liability on the domestic level does not include criminal liability for states as such.44 Instead, the law of state responsibility does apply to state misconduct.45 But this is designed to warrant compensation for damages and not to punish states for internationally wrongful acts.46 36 However this does not mean that states are not able to commit genocide, nor that they could not be held liable for committing genocide.47 Consequently, the implication of Article IV regarding state responsibility is that this provision by no means limits nor prevents the interpretation of the Genocide Convention as imposing on states the obligation not to commit genocide.48 2. ‘whether they are constitutionally responsible rulers, public officials or private individuals’ 37 Punishment of ge´nocidaires, according to the wording of Article IV, must not be excluded even though the pertinent person is a ‘constitutionally responsible ruler’, a ‘political official’ or a ‘private individual’. This formulation means that impunity for ge´nocidaires belonging to these categories would breach the Convention without any exception. National laws restricting the punishment of ‘constitutionally responsible rulers’, ‘political officials’ or ‘private individuals’, such as the provisions of immunities or defences must be annulled. Otherwise perpetrators would not be subject to the stipulation that they ‘shall be punished’. As noted above, for other entities (notably corporations), domestic law can go beyond Article IV and provide criminal sanctions as well. However, for people belonging to the three groups expressly mentioned, states are required to impose it. The following section assesses these categories in greater detail. a. Constitutionally responsible rulers 38

The notion of ‘constitutionally responsible rulers’ was the main point of disagreement during the drafting procedure of the Convention.49 Whilst for a time, ‘rulers’ had been replaced by ‘heads of state’, the final version of the Convention contained the original ‘rulers’ qualified by the attribute ‘constitutionally responsible’.50 The wording of Article IV and the wording of the other official language 43

Supra, mn. 19. It would be absurd if, on the domestic level, one and the same state could in parallel enforce and be subject to criminal law. Moreover, in international relations, due to the principle of sovereign equality, one state cannot be subjected to another state’s criminal law. 45 A concept of ‘criminal law for states’ does not exist, see further Article I, mn. 62. 46 Cassese, JIntCrimJust 5 (2007), 878–882, gives some good examples of this disharmony by rightly displaying some inaccuracies within the decision of the ICJ in the Bosnian Genocide case. 47 Such argumentation, however, was unsuccessfully raised by Yugoslavia in the Bosnian Genocide case, ICJ Reports 2007, 115 (para. 171), as well as in the Joint Declaration to the judgment by the Judges Shi and Koroma, ibid., 279–84; see on this issue also Clearwater, AucklULRev 15 (2009), 19–22; Quigley, Genocide Convention, 234–5. 48 On this, the ICJ rightly assumes two different obligations set up by the Convention, namely to punish ge´nocidaires as well as to refrain from genocidal actions itself, see Bosnian Genocide case, ICJ Reports 2007, 201 (para. 383); This topic is discussed in detail in Article I, mns 24–30, 51–82. 49 Supra, mns 8-9. 50 Yet the French and Spanish texts have never left a doubt on the interpretation that the persons belonging to this circle must be part of the government (namely ‘gouvernatnts’/‘gobernantes’). 44

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versions of the Convention confirm that this provision addresses individuals who have effective control of governmental power in a state. However, those individuals need not have come to this constitutionally responsible position by legitimate means. Insisting otherwise would exclude those who come to power through such non-legal means as a coup d’e´tat for example, which would potentially undermine the protection offered by the Convention. It should be emphasised that the notion ‘constitutionally responsible rulers’ 39 does not mean the same as ‘heads of state’. The wording of Article IV reflects the drafters’ intentions of excluding from the list heads of states that merely act in a representative function.51 Of course, whenever heads of states are involved in the actual decision-making process, they will incur criminal liability for their acts. Conversely, where they are not involved, they will usually not be proved guilty as required by Article V. All that Article IV seeks to preclude is that conduct attributable to a state would automatically imputed to heads of state without any actual involvement. b. Public officials Public officials are those individuals who hold a position connected to a state or 40 a state entity such as civil servants or members of the military who are not rulers as described in the previous section. Such officials usually act in the name of, on behalf of, or by order of the state or state entity they belong to. Whether or not the official depends on directives of the state or can act independently in exercising governmental functions is not decisive. In any event, the commission of an act mentioned in Articles II and III reflects the final decision of every person, irrespective of his or her function or role in a public authority; neither official capacity nor superior orders (as will be shown below) are an accepted defence. In other words, where public officials, in specific circumstances, are merely involved in a hierarchical chain, they are under a duty to oppose and prevent genocide.52 Among the group of public officials, diplomats have traditionally played an 41 important role. They represent their home state in foreign affairs and act according to governmental guidelines. Hence they are public officials. Still, unlike other public officials, and because of their exposed function, they enjoy widespread immunity in the receiving state, including immunity from criminal prosecution under customary international law and Article 31 VCDR.53 But whatever their general status is, it follows from Article IV that diplomats, too, have to be punished if they commit genocide or related acts in the sense of Articles II and III.54 Interestingly, the Chinese text initially referred to an expression covering just ‘rulers’; now, after its 1952 revision, it corresponds in meaning to the English expression: see UN Doc. A/2221, 10, and the Convention’s valid Chinese text reproduced in Annex 1. 51 Supra, mn. 9. Such an understanding is in line with the historical precedents of the Nuremberg and Tokyo war crimes trials, which withheld immunity (and thus, as a result, impunity) from individuals that exercised governmental functions, the main exception being the (politically motivated) exclusion of the Japanese Emperor from the IMTFE trials; see Piccigallo, The Japanese on Trial, 17–8. 52 On the defence of ‘superior orders’ see infra, mn. 65. 53 Denza, Diplomatic Law (3rd ed.), 280–4. 54 See on a possible derogation (in parts) of this conventional provision by the VCDR infra, mn. 59.

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Article IV 42–45 c. Private individuals Private individuals are natural persons not allied with an official position. The word ‘private’ as opposed to ‘public’ signals that a link to an official position is not required. The word ‘individuals’ refers to natural persons and does not include private corporations. 43 Curiously, the French and Spanish language versions do not refer to ‘individuals’, but just to ‘privates’ (i. e. French: ‘des particuliers’, Spanish: ‘particulares’), which could be read to include legal persons as well as natural persons. If this were indeed so, the duty to ensure punishment of perpetrators of genocide listed in Article IV would extent to corporations and other legal persons as well. This however would seem difficult to bring in line with the – still dominant – focus of national criminal laws on natural persons. As shown above, Article IV does not prevent states from providing criminal sanctions for legal persons in their national legal orders. But a mandatory punishment also for corporations would overexpand the object and purpose of effective punishment. Such a grave intrusion into national criminal law55 is not necessary to fulfil the conventional aims and was not intended by the drafting parties.56 In the light of this, the notion of ‘private individuals’ and the (wider) equivalent terms used in the French and Spanish language versions should be construed to refer to natural persons only.57 42

III. Implied legal consequences 44 In addition to the explicit legal duty imposed on states to ensure the prohibition of impunity for acts of genocide, a number of other implied consequences flow from Article IV. The first concerns the availability of immunities recognised under international and national law in genocide proceedings. This is the first and most prominent topic of the following section. It will be argued that immunity does not limit the duty to ensure punishment of perpetrators, be it before national or international courts. Beyond that, possible defences available to persons accused of genocide shall be addressed briefly. Finally, it is worth discussing whether a mitigation of punishment and a statutory limitation for prosecuting genocide might be admitted in the light of Article IV. 1. Article IV and immunities 45

Provisions on immunity of individuals58 prevent protected persons from having to answer charges in court proceedings. In the case of genocide, immunity from 55 As seen supra, mn. 19, some national criminal legal systems do not provide for criminal liability of corporations and would then be obliged to do so. 56 Kelly, CaseWResJIL 43 (2010–2011), 487. 57 With the same arguments one could, arguably, also apply Article 33 para. 3 VCLT and presume the texts to have the same meaning by teleologically reducing the French and Spanish words as referring to individuals only. 58 Immunity of states themselves is the overall concept of the more specific individual immunity as a part of if. But immunity of states as such is not a matter of individual criminal jurisdiction and is therefore no subject of this commentary. Subsequently, when immunity is mentioned, it shall be understood as immunity of individuals if not denoted differently. Notwithstanding, general observations and principles also on individual immunity are considered in the ICJ Jurisdictional Immunities case (Germany v. Italy, Greece intervening), judgement of 3 February 2012 (at www.icj-cij.org).

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criminal prosecution (and thus also from punishment) is of central importance.59 It received scant attention during the drafting process. However, following demands for effective punishment of perpetrators of serious crimes (such as genocide, or crimes against humanity), it has since become a question of major concern for scholars, courts and the ILC.60 As immunity, if applicable, precludes a criminal court from exercising jurisdiction, it cannot be classified as a defence but rather as a procedural bar to trial.61 As such, it raises matters relevant to Articles IV and VI, both of which need to be read systematically together when it comes to the interpretation of the Genocide Convention. That the basic rationale of both provisions – namely to ensure the prosecution and punishment of perpetrators – conflicts with immunity seems obvious;62 hence the impact of the Convention on the law of immunity needs to be addressed. As the matter is not mentioned expressly by the Convention, the subsequent treatment is condensed and focused on the more prominent issues. Immunities can be recognised under national law (e. g. for members of parlia- 46 ment) and under international law. Both national and international immunities can clash with the duty to ensure punishment as set out in Article IV (and the duty to prosecute stipulated in Article VI). They raise very different legal issues, though, and need to be dealt with separately. a. Immunities under national law Immunities recognised under the domestic laws of state parties can be addressed 47 on the basis of the Convention’s rules regulating the relationship between national law and treaty commitments. The key provision in this respect is Article V, pursuant to which state parties must enact necessary legislation to give effect to the Convention in its entirety.63 Accordingly, national rules on immunity (such as, inter alia, immunity for members of parliament) must be abolished if they conflict with the duty to provide for unconditional punishment of ‘constitutionally responsible rulers, public officials or private individuals’. This is a direct consequence of the duty to ensure punishment of perpetrators, which needs to be effectively implemented.64 As such, immunities based on national law must not shield a person from punishment under Article IV.65 59 Kreicker, Vo ¨ lkerrechtliche Exemtionen, provides a comprehensive account; see also, inter alia, van Alebeek, Immunity of States and Their Officials, passim; Wuerth, AJIL 106 (2012), 731. 60 For the ILC’s work on the immunity of state officials from foreign criminal jurisdiction see the reports of the Special Rapporteurs Kolodkin (UN Docs A/CN.4/601, 631 and 646) and Escobar Herna´ndez (UN Docs A/CN.4/654 and 661) as well as the annual ILC Reports (UN Docs A/62/10, A/63/10, A/64/10, A/65/10, A/66/10, A/67/10). 61 Escobar Herna ´ndez, Second report on the immunity of State officials, UN Doc. A/CN.4/661, 14 (para. 45); Werle, Int’l Criminal Law (2nd ed.), mn. 381. In Jurisdictional Immunities, the ICJ (in a case concerning the immunity of a state, not of its officials, but expressing a general feature of immunities) put this as follows: ‘the fact that immunity may bar the exercise of jurisdiction in a particular case does not alter the applicability of the substantive rules of international law’. In the inter-state case, it followed that ‘whether a State is entitled to immunity before the courts of another State is a question entirely separate from whether the international responsibility of that State is engaged’; and the same could be said for the criminal responsibility of individuals (see Judgment of 3 February 2012, para. 100). 62 The opposite view implied by Schabas, Genocide in Int’l Law (2nd ed.), 370, remains unclear. 63 Gaeta, in: Gaeta, Genocide Convention, 320. 64 Supra, mns 28-32. 65 See e. g. Cassese, JIntCrimJust 1 (2003), 441.

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Article IV 48–50 As a consequence, member states must annul (or refrain from applying) provisions of domestic law that conflict with the Convention, without prejudice as to whether such provision is based on their own legislation or (as in cases involving conflicts of laws) on foreign national legislation. Absent any treaty commitment to the contrary, states are usually not required to the give effect to foreign legislation as a matter of law, but only as a matter of comity – which cannot prevail over legal duties imposed by the Convention. As regards their own legislation, Article 27 VCLT and corresponding customary international law66 clarify that provisions of internal law, irrespective of their rank and nature, may not be invoked to justify non-compliance with treaty obligations.67 In other words, even in the face of domestic legal obstacles, parties to the Convention must ensure that ge´nocidaires can be punished under their domestic law.68 49 The question is whether this requires states to enact legislation abrogating or disapplying existing national immunity rules. As noted in the commentary to Article V, domestic implementation legislation is usually required to ensure that genocide attracts effective penalties. However, that duty to enact relates to a positive obligation (the duty to criminalise genocide). By contrast, the duty not to hinder the punishment of persons charged with genocide can be complied with by abstention: immunities must simply not be given effect. This can of course be done by means of national legislation laying down immunity exceptions. But even where such legislation is missing, Article IV could produce legal effects within domestic legal orders if it were self-executing.69 For that to be the case, it would have to be sufficiently precise to be applied domestically after the treaty had been implemented generally (even though implementation legislation has not been passed). While the duty to enact legislation reflecting the duty to ensure punishment of ge´nocidaires requires implementation legislation (if only because criminal laws need to be spelled out), the negative duty not to recognise the immunity of perpetrators is clear and precise: persons listed in Article IV shall not be shielded from punishment. In order to be given effect, this negative duty does not require to be specifically implemented, but can be applied directly – with the consequence that existing domestic law has to be interpreted in the light of Article IV or disapplied. 48

b. Immunities under international law, particularly before foreign domestic courts 50

Immunities under international law present a greater obstacle to the duty to ensure punishment set out in Article IV of the Convention. International law has long recognised various forms of immunity, which are commonly derived from the principle of the sovereign equality of states.70 In essence, the international regime of 66 Schaus, in: Corten/Klein, VCLTs Commentary, 691–2, mns 4–5; Schmalenbach, in: Do ¨ rr/ Schmalenbach, VCLT Commentary, 454, mn. 4; Villiger, Commentary on the VCLT, 374–5, mn. 11. 67 For more aspects on legal consequences Schaus, in: Corten/Klein, VCLTs Commentary, 700–1, mn. 17. 68 Supra, mns 28-32. 69 In general on self-execution of treaty provisions Buergenthal, Self-Executing Treaties, in: RdC 1992 (Vol. 235), 303; and further Schweisfurth, Vo¨lkerrecht, 203–5 (mns 28–33); see also Article V, mn. 29. 70 See Article 2 para. 1 UN Charter; further Germany v. Italy (Greece intervening; judgement of 3 February 2012, at www.icj-cij.org), para. 57; Franey, Immunity, Individuals, Int’l Law, 54–76;

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immunities requires courts to refrain from exercising jurisdiction in a proceeding against a foreign state official if the proceeding concerns official conduct71 (functional immunities, or ratione materiae) or if it is directed against a high-ranking representative of a foreign state72 (personal or diplomatic immunities – both ratione personae – benefiting incumbent heads of state or government and foreign ministers73 as well as ambassadors74). Functional immunity is effective even after the person has left office, whilst personal immunity is temporally linked and restricted to the respective person’s position. The recognition of these international immunities is not a question of comity, but an international legal obligation of states. While the foreign state concerned can waive the immunity of its officials, such waiver cannot be presumed in general, and domestic courts must ensure upon their own initiative that international rules are complied with.75 Article IV does not explicitly mention the issue of immunity and does not make a 51 distinction between immunity ratione materiae and ratione personae. Rather, the object and purpose of the provision would support the conclusion that Article IV affects arguments based on both categories of immunity. What is more, whilst the general distinction between personal and functional immunity is recognised, Article IV is assumed to have an equal effect to both classes of immunity. This commentary therefore, focussing on this provision’s implied legal consequences, does not specify separate classes of immunity with regard to Article IV. The question is whether immunity is also available where an individual is 52 charged with genocide or a related act. In addressing this question, it is necessary to distinguish between proceedings before foreign domestic courts and proceedings before international criminal tribunals.76 By contrast, where a person is charged with genocide before a court of his or her nationality, international immunities do not apply. If domestic courts have to deal with immunities of own nationals, such immunities can, by definition, only be of national character and must be ignored by virtue of Article IV.77 Before proceeding, it is important to note that under the Convention’s system for prosecution and punishment, the latter scenario is by no means unusual: Pursuant to Article VI, proceedings are to take place before courts in the (territorial) state where acts of genocide have been committed.78 Where these acts of genocide were committed during inter-ethnic violence or a civil war, the perpetrators will typically hail from the territorial state. (The Rwandan genocide was committed by Rwandans against Rwandans, just as Bosnian Serbs committed Kokott, Sovereign Equality, in: MPEPIL, mns 15–9, particularly on immunity: 37; Werle, Int’l Criminal Law (2nd ed.), mn. 646; Wirth, EJIL 13 (2002), 882–4; Wuerth, AJIL 106 (2012), 740. 71 See in general also for the other aspects in this mn. Escobar Herna ´ndez, Second report on the immunity of State officials, UN Doc. A/CN.4/661, 16 (para. 50), and more detailed former Special Rapporteur Kolodkin, Second report on immunity of State officials from foreign criminal jurisdiction, UN Doc. A/CN.4/631, 11–20 (mns 21–34). 72 See e. g. van Alebeek, Immunity of States and Their Officials, 105–6. 73 See notably Arrest Warrant, ICJ Reports 2002, 22–3 (para. 51–5); Escobar Herna ´ndez, Second report on the immunity of State officials, UN Doc. A/CN.4/661, 18–20 (paras 58–60). 74 For diplomatic immunities see Article 31 para. 1 VCDR (reflecting customary international law); and further Denza, Diplomatic Law (3rd ed.), 283. 75 In the Cumawasramy opinion, the ICJ noted that ‘questions of immunity are … preliminary issues which must be expeditiously decided in limine litis’: ICJ Reports 1999, 62, para 63. 76 On the latter, see infra, mns 60-61. 77 Supra, mn. 47. 78 See further Article VI, mns 24–25.

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Article IV 52–54 acts of genocide against Bosnian Muslims at Srebrenica). In this setting, immunity does not bar proceedings in the territorial state. By the same token, where genocide is committed by foreigners, immunity does not preclude proceedings in the state of nationality of the foreign perpetrators. 53 By contrast, immunity could undermine prosecution in two other scenarios: first, where genocide has been committed by foreigners, but is to be prosecuted in the territorial state (e. g. if the territorial state intends to prosecute foreign soldiers for acts of genocide committed on its territory during an international armed conflict); and second, where the territorial state does not prosecute genocide because it is unwilling or unable to do so, but charges are brought before a foreign domestic court against foreign nationals (e. g. proceedings before third state courts against foreign nationals, and in relation to genocide committed abroad). In these scenarios, state immunity indeed could be a major obstacle, as genocide, if not by definition, is frequently committed with government involvement and by state officials.79 54 Whether immunity should be respected even in cases of international crimes has long been a matter of major controversy.80 Recent decades have seen various attempts to curb the availability of functional and, to a lesser extent, personal immunities in cases of ‘core crimes’ (including genocide). Over time, different argumentative strategies have been pursued. Where jus cogens norms have been breached (as they would in case of genocide), immunity has been said to be ‘trumped’ by the hierarchically superior norms.81 In view of their universal condemnation, it has been argued that international crimes could not be qualified as official acts for the purposes of functional immunity.82 More generally, bodies like the Institut de Droit International in its 2009 Naples Resolution, have proposed a ‘core crimes exception’ from functional immunity.83 But, with regard to proceed79 The drafters were fully aware of this: see e. g. the explanatory commentary to the Ad Hoc Committee draft, UN Doc. E/794, 32: ‘genocide would be committed mostly by the State authorities themselves or that these authorities would have aided and abetted the crime’. 80 Amongst many others, see e. g. Akande/Shah, EJIL 21 (2010), 839–46; Cassese, EJIL 13 (2002), 864–6; Cassese/Gaeta et al., Cassese’s Int’l Criminal Law (3rd ed.), 242–8; Fox, State Immunity (2nd ed.), 695–700; Frulli, JIntCrimJust 2 (2004), 1127; Kreicker, Vo¨lkerrechtliche Exemtionen, 175–219; Kreß, in: Klip/Sluiter, Annotated Leading Cases, Vol. 9; Kreß/Prost, in: Triffterer, ICC Statute (2nd ed.), Article 98, mns 16–8; Triffterer, in: Triffterer, ICC Statute (2nd ed.), Article 27, mn. 12; Werle, Int’l Criminal Law (2nd ed.), mn. 654; Wirth, EJIL 13 (2002), 877 (all in favour of withholding immunity in case of severe crimes); but in contrast Daqun, Non-Immunity for Heads of State, in: Sovereignty and Int’l Criminal Law, 73–4; Kolodkin, Second report on immunity of State officials from foreign criminal jurisdiction, UN Doc. A/CN.4/631, 56 (mn. 90); Wuerth, AJIL 106 (2012), 731. 81 Typically, the argument is advanced in cases involving state immunity from civil proceedings, but not restricted to that field of immunities: see e. g. Siderman de Blake v. Republic of Argentina, 965 F.2 d 699, 718 (CA 9th Cir. 1992) (‘when a state violates jus cogens, the cloak of immunity provided by international law falls away, leaving the state amenable to suit’); as well as Ferrini v. Federal Republic of Germany (2004), RdDI 87 (2004), 539 (Italy: Corte di Cassazione); Orakhelashvili, Peremptory Norms in Int’l Law., 343 (‘under international law peremptory rules such as core norms of human rights law prevail over non-peremptory norms of immunities.’). 82 See e. g. HoL Pinochet I, 25 Nov. 1998 (per Lords Nicholls and Steyn) and HoL Pinochet III, 24 March 1999 (per Lords Browne-Wilkinson and Hutton). 83 Resolution on the Immunity from Jurisdiction of the State and of Persons Who Act on Behalf of the State in case of International Crimes, http://www.idi-iil.org/idiE/resolutionsE/ 2009_naples_01_en.pdf, Article III para. 1: ‘No immunity from jurisdiction other than personal immunity in accordance with international law applies with regard to international crimes.’

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ings before national courts,84 these approaches have met with considerable resistance. As regards personal immunities in particular, the ICJ, in the Arrest Warrant case, upheld a sitting Foreign Minister’s claim to personal immunity in the face of charges of crimes against humanity and war crimes and expressly rejected any ‘core crime exception’.85 In Jurisdictional Immunities, in the context of state immunity, the Court dismissed arguments based on normative hierarchy (jus cogens), noting that ‘[a] jus cogens rule is one from which no derogation is permitted but the rules which determine the scope and extent of jurisdiction and when that jurisdiction may be exercised do not derogate from those substantive rules which possess jus cogens status, nor is there anything inherent in the concept of jus cogens which would require their modification or would displace their application.’86

As regards the qualification of genocidal conduct, it has been rightly stated that where perpetrators are invested with state authority and act in pursuit of policies of a government (as will often be the case), ‘[t]o deny the official character of such offences is to fly in the face of reality’.87 In the face of these statements, claims that international crimes should, before national courts, generally be excluded from immunity now seem to have become difficult to sustain. Notwithstanding these uncertainties, with respect to immunity for genocide, a 55 more narrowly tailored argument may justify an exception to immunity. More specifically, the terms of the Convention itself (as opposed to broader arguments based on normative hierarchy etc.) may implicitly warrant that immunity be withheld. The ‘conventional’ argument against immunity rests on the Convention’s provisions designed to ensure punishment and prosecution, viz. Articles IV and VI. It is based on the assumption that where a treaty requires the punishment or prosecution of perpetrators, this can be taken as an implicit waiver of immunity88 whenever otherwise punishment would be impeded. The argument is strong where a treaty mandates the exercise of jurisdiction, and where – for jurisdiction to be exercised meaningfully – immunity cannot be upheld. In the framework of the Convention, mandatory jurisdiction – to be exercised by the territorial state – is provided for in Article VI.89 As has been noted above, as long as jurisdiction is exercised over nationals of the territorial state, immunity is not an issue. However, it is prima facie available where territorial states exercise jurisdiction over foreign perpetrators. Pursuant to Article VI, the Convention requires them to do so; it imposes a first rank duty to prosecute.90 This duty would be undermined if, because of international rules of immunity, courts in the territorial state had to refrain from 84

See on international criminal proceedings and a ‘core crimes exception’ infra, mn. 60. ICJ Reports 2002, 24, para. 58: The Court ‘has been unable to deduce … that there exists under customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs, where they are suspected of having committed war crimes or crimes against humanity’. 86 ICJ Germany v. Italy (Greece intervening; judgement of 3 February 2012, at www.icj-cij.org), para. 95. 87 Barker, ICLQ 48 (1999) 937, 943. 88 Akande/Shah, EJIL 21 (2010), 841: ‘Where the application of the prior immunity would deprive the subsequent jurisdictional rule of practically all meaning, then the only logical conclusion must be that the subsequent jurisdictional rule is to be regarded as a removal of the immunity.’ 89 Article VI, mns 24–25, 29–31. 90 See for details Article VI, mn. 58. 85

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Article IV 55–58 exercising jurisdiction – as they would in all cases involving genocide committed by state officials. In this setting, Article VI is to be read as a waiver of immunity.91 56 Outside instances of mandatory territorial jurisdiction, Article VI does not provide argumentative support. Since it does not cover the (mandatory) extraterritorial prosecution of foreign ge´nocidaires in third states,92 it does not apply to debates about immunity in that setting. Still, Article IV itself could be drawn upon to support an immunity exception. In fact, the clear requirement that ge´nocidaires ‘shall be punished’ has been read as a blanket waiver of immunity.93 Even if that reading is not accepted, it is submitted that the duty of all state parties to ensure punishment of perpetrators affects arguments about immunity. The duty to ensure punishment includes an obligation to remove barriers to punishment, such as immunity.94 To comply with this duty the state of nationality of suspected ge´nocidaires could e. g. waive immunity (thus allowing proceedings to be exercised), or prosecute the perpetrator before its own courts (where immunity does not arise).95 In both scenarios, immunity would not bar the punishment of suspects. 57 By contrast, if the state of nationality is unable or unwilling to conduct a genuine trial before its own courts, and if it is unwilling waive immunity, the only way to ensure that ge´nocidaires ‘shall be punished’ is for the trial to proceed in the third state. In this setting, Article IV would indeed justify the withholding of immunity. 58 In light of the preceding considerations, Articles IV and VI of the Convention can be read as implicitly excluding or modifying rules of immunity. It must be admitted, though, that the underlying argument – resulting in a ‘Convention-specific’ exception to immunity – has remained controversial. In the Pinochet litigation before the House of Lords, broadly in line with the argument suggested above, Lord Phillips considered Article IV alongside provisions of the Torture Convention mandating the exercise of jurisdiction, and read them as an implicit waiver of immunity.96 Perhaps in response, the ICJ, in the Arrest Warrant case, was careful to distinguish between jurisdictional provisions found in treaties, and customary rules of immunity.97 At least for functional immunities, practice since 1948 however seems to suggest that states and state courts are unwilling to recognise the immunity of alleged ge´nocidaires. Adolf Eichmann’s plea of immunity was dismissed by the Jerusalem District Court who, in support, expressly

91 Akande/Shah, EJIL 21 (2010), 846: ‘Therefore, it would appear that the Convention, through Articles IV and VI, has displaced immunity ratione materiae in a situation where prosecutions take place in the state where the genocide occurs.’ 92 However, the Convention does not preclude jurisdiction beyond its scope, Article VI, mns 45– 52. 93 See e. g. Quigley, Genocide Convention, 235: ‘Article IV … means that as among individuals who may be charged with genocide, immunity is not enjoyed by public officials or constitutionally responsible rulers.’ 94 Supra, mns 28-32. 95 Of course, the former option requires that the suspect indeed would be charged and tried in his or her home country. To ensure that this happens, a state requested to extradite a suspect would be well-advised to insist on assurances that the trial will take place and that it will be genuine. 96 HoL Pinochet III, 24 March 1999 (per Lord Phillips). 97 ICJ Reports 2002, 3, para. 59: ‘[A]lthough various international conventions on the prevention and punishment of certain serious crimes impose on states obligations of prosecution or extradition [and] require[e] them to extend their criminal jurisdiction’, this ‘in no way affects immunities under customary international law, which remain opposable before the courts of a foreign State, even where those courts exercise such a jurisdiction under these conventions’.

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invoked Article IV.98 This view was confirmed in the 1962 Supreme Court decision on Eichmann’s appeal, adding the argument that not granting immunity for international crimes would have been already a part of international law.99 Among the few subsequent genocide issues before national courts concerned with immunities, the proceedings against Sharon and others before Belgian criminal courts between 2001 and 2003 are the most prominent.100 The proceedings referred to the 1982 massacre in the Lebanese refugee camps of Sabra and Shatila, including alleged genocidal actions. Criminal investigations were exercised against Ariel Sharon (Israeli Minister of Defence in 1982) and Amos Yaron (Division Commander of the Israeli army in 1982). The Belgian Court of Cassation found that proceedings against Sharon are barred by virtue of personal immunity (as he was the incumbent Prime Minister in 2003) whilst Yaron could be prosecuted because he was regarded not to be protected by virtue of functional immunity despite still being in office.101 Such tendency to deny (at least functional) immunity before foreign national courts materialised for the considerable number of states having adopted the Rome Statute (in particular its Article 27 para. 2102). Doing so, all state parties to the ICC disclosed their opinio juris that immunity for international crimes such as genocide is inapplicable. Last, it is worth noting that the preceding considerations are equally valid for 59 diplomatic immunity as reflected in Article 31 para. 1 subpara. 1 VCDR.103 Admittedly, statements made during the drafting process suggest that Article IV was not to abolish the concept.104 However, this did not find expression in the text of Article IV, and in and of itself cannot affect the result of the interpretation. It is worth noting, moreover, that the VCDR provisions only protect from the ‘jurisdiction of the receiving state’, i. e. are no bar to proceedings in third states (and even less so to international criminal trials). c. Immunities and international criminal proceedings Slightly different considerations obtain with respect to proceedings for genocide 60 (or related acts) before an international penal tribunal.105 Typically, questions of immunity are addressed in the statutory documents of the relevant criminal tribunal. Experience with existing provisions suggests that immunities (whether personal or functional) cannot be invoked in proceedings before an international criminal tribunal. Article 27 para. 2 of the Rome Statute e. g. provides that ‘[i]mmunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising jurisdiction over such a person.’106 98 District Court of Jerusalem, Eichmann, 12 Dec. 1961, paras 21, 28; Kreicker, Vo ¨ lkerrechtliche Exemtionen, 201–3. 99 Supreme Court of Israel, Eichmann (appeal), 29 May 1962, paras 11, 14. 100 Cour de Cassation de Belgique, Sharon et al., file number P.02.1139.F/1; see further Cassese, JIntCrimJust 1 (2003), 437; see with respect to prior UN actions concerning the Sabra and Shatila incident Article VIII, mn. 28. 101 Cassese, JIntCrimJust 1 (2003), 444. 102 See the wording of Article 27 para. 2 ICC Statute infra, mn. 60. 103 It reads as follows: ‘A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.’ 104 See for references e. g. Gaeta, in: Gaeta, Genocide Convention, 314. 105 See on the definition of ‘international penal tribunal’ Article VI, mns 34–7. 106 For many details see Kreß, ICC and Immunities, in: Sovereignty and Int’l Criminal Law, 223.

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Article IV 60, 61 This is in line with Article 7 para. 2 of the ICTY Statute, and Article 6 para. 2 of the ICTR Statute, both of which clarify that ‘[t]he official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.’

This recent statutory practice, but also international criminal jurisprudence leads to the conclusion that a ‘core crimes exception’ to immunities in international criminal proceedings is part of customary international law. The ICTY has been repeatedly recognising this, particularly in the cases of Karadzˇic´,107 Blasˇkic´,108 and Furundzˇija.109 The ICC, in its decisions concerning the incumbent Sudanese president Al Bashir, has strengthened this development.110 The same did the Special Court for Sierra Leone concerning Charles Taylor.111 And even the ICJ, otherwise a strong defender of immunity, has noted that incumbent officials ‘may be subject to criminal proceedings before certain international courts’, of which it mentioned the ICC, the ICTY and the ICTR.112 61 All this suggests that in the presence of an express rule precluding immunity, Article IV is usually not required; immunities are disapplied by special statutory provisions as well as customary international law. Article IV may however become relevant subsidiarily if an international criminal tribunal exercises jurisdiction over third state nationals and – contrary to the predominant scholarly and judiciary findings – disregards a customary ‘core crimes exception’.113 In these cases, express provisions found in a tribunal’s statute do not bind the third state. Yet where the state is bound by the Genocide Convention, Article IV requires it to ensure the punishment of perpetrators. As shown above, this may entail a duty to waive immunity, or to cooperate with the tribunal. To give just one example, in ICC proceedings based on Security Council referrals, it has been controversially dis107 ICTY Karadz ˇic´, TC, 16 May 1995, paras 23–4: ‘It follows from the above principle that the official capacity of an individual even de facto in a position of authority – whether as military commander, leader, or as one in government – does not exempt him from criminal responsibility and would tend to aggravate it; …’ 108 ICTY Blasˇkic´, AC, 29 Oct. 1997, para. 41: ‘… These exceptions arise from the norms of international criminal law prohibiting war crimes, crimes against humanity and genocide. Under these norms, those responsible for such crimes cannot invoke immunity from national or international jurisdiction even if they perpetrated such crimes while acting in their official capacity. …’ 109 ICTY Furundz ˇija, TC, 10 Dec. 1998, para. 140: ‘… Individuals are personally responsible, whatever their official position, even if they are heads of State or government ministers: Article 7(2) of the Statute and Article 6(2) of the Statute of the International Criminal Tribunal for Rwanda … are indisputably declaratory of customary international law.’ 110 ICC Al Bashir, PTC, 4 March 2009; ICC Al Bashir (Malawi), PTC, 12 December 2011; ICC Al Bashir (Chad), PTC, 13 December 2011. For a detailed assessment of these decisions Kreß, ICC and Immunities, in: Sovereignty and Int’l Criminal Law, 223. For the view of the SCSL on this matter see Frulli, JIntCrimJust 2 (2004), 1122. 111 SCSL Taylor (Immunity), 31 May 2004, 15, 21–6 (paras 28–9, 43–59); discussed by Kreß, in: Klip/Sluiter, Annotated Leading Cases, Vol. 9, 202–8; see also Frulli, JIntCrimJust 2 (2004), 1118. 112 ICJ Reports 2002, 26 (para. 61, last subpara.), see also Kreß, in: Klip/Sluiter, Annotated Leading Cases, Vol. 9, 203. 113 If at all, a ‘core crimes exception’ might be disregarded concerning personal immunity. In this case Article IV can indeed be decisive to overcome immunity since it is equally applicable with regard to immunity ratione personae and materiae, supra, mn. 51.

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cussed whether personal immunities could be invoked.114 According to one view, by referring the matter to the ICC, the Security Council can be taken to have settled the matter. Alternatively, it could well be argued that Articles IV and VI of the Genocide Convention require state parties to the Convention to disregard immunities. This suggests that even in relation to proceedings before international criminal tribunals, Article IV may serve a useful – even though auxiliary – purpose. d. Interim conclusions Were the Convention to be negotiated today, the issue of immunities would be 62 discussed in much more detail. The Convention’s rather rudimentary regulation leaves room for uncertainty. As regards proceedings before international criminal tribunals, express statutory provisions typically clarify the positions – by declaring immunities to be unavailable. Even more, a customary law exception to immunities in ‘core crimes’ proceedings before international criminal courts can well be assumed. As regards trials before foreign domestic courts, the international legal position with respect to ‘core crimes’ is generally controversial. With respect to genocide, Articles IV and VI allow for Convention-based arguments that preclude the invocation of immunity if otherwise the duty to ensure punishment of perpetrators cannot be achieved. 2. (Other) defences Immunity is the most relevant, but not the only obstacle to the punishment of 63 ge´nocidaires. Once a trial has been initiated (and immunity been excluded), issues of substantive law become relevant. After having assessed the actus reus and mens rea pursuant to Articles II and III, a court will have to assess whether the defendant can invoke defences.115 As has been noted above, they remain generally available.116 However, due to the gravity of the charge and the narrow formulation of the crime of genocide, it is common sense that defences can only be invoked in extraordinary cases.117 a. Official capacity Official capacity has historically been the most relevant defence advanced by 64 persons charged with international crimes. Under the Genocide Convention, it is clear that it can never be invoked as a defence for genocidal conduct.118 While the crime of genocide is often committed with state involvement (and thus the result of ‘official’ activity), the Genocide Convention recognises, in the words of the ICJ, the ‘duality’ of state and individual criminal responsibilities.119 This means that even where genocide is committed as part of official state activity, state responsibility 114

See the ICC Al Bashir proceedings referred to supra, fn. 110. On the terminology of ‘defences’ see Schabas, Genocide in Int’l Law (2nd ed.), 367–9. 116 Supra, mn. 25. 117 Werle, Int’l Criminal Law (2nd ed.), mn. 537. 118 Schabas, Genocide in Int’l Law (2nd ed.), 369–71; Triffterer, Irrelevance of Official Capacity, in: Festschrift Hafner, 571, clarifies rightly that official capacity cannot lead to a substantial law limitation of an international crime; insofar also a substantial law nexus, though a negative one, cannot be denied. 119 See Article I, mns 66–7. 115

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Article IV 64–67 does not ‘consummate’ individual criminality. Precisely to confirm this, Article IV expressly lists ‘public officials’ among the groups of persons that ‘shall be punished’ if they commit genocide or related acts. In fact, to have acted in an ‘official capacity’ could even be a factor aggravating punishment.120 b. Superior orders Another prominent defence for international crimes such as genocide is that of superior orders.121 Perpetrators not belonging to the highest levels of the state organisational structure, most often those having directly participated in hostilities, tend to invoke the defence of superior orders. Whilst specific reference to superior orders was deleted during the drafting of the Convention122 it is clear that both the wording of the provision and its object and purpose preclude its application. The provision in Article IV that ‘persons committing’ genocide ‘shall be punished’ clarifies that the specific motivation (e. g. to follow orders) cannot justify genocidal conduct. If the crime is committed then punishment necessarily must follow. This interpretation best explains why Article IV specifically lists ‘public officials’ alongside ‘constitutionally responsible rulers’: at least in scenarios of ‘organised’ genocide committed with the involvement of an hierarchically structured state apparatus, the great majority of perpetrators could otherwise plead to have acted ‘on orders’ and escape punishment. The same approach has since been recognised in Article 33 para. 2 ICC Statute, which excludes the defence of superior orders specifically for genocide.123 66 It is worth noting that while not proffering a defence, the plea of superior orders may, however, be relevant in assessing the mens rea of defendants. If the accused pleads to only have executed superior orders, he or she may well argue that the respective order (and the fear of consequences for disobedience) was the only motivation to act. If this is indeed so, the accused might well have been aware of the circumstances of the specific operation, namely murder, and insofar acted with mens rea. But having merely followed orders, the accused may have lacked the required specific genocidal intent,124 which goes far beyond the intent of merely (e. g.) killing a person.125 Moreover, having acted under the pressure of superior orders may have influence on the assessment of punishment.126 65

c. Further defences 67

The general defences of international criminal law, including self-defence, necessity, duress for instance127 also apply to genocide.128 Regarding the specific gravity 120

Infra, mn. 69. See on this defence in general e. g. Dinstein, Defence of ‘Superior Orders’, passim; Gaeta, EJIL 10 (1999), 172; Korte, Handeln auf Befehl, passim; Schabas, Genocide in Int’l Law (2nd ed.), 380–8; Triffterer, in: Triffterer, ICC Statute (2nd ed.), Article 33, passim; Werle, Int’l Criminal Law (2nd ed.), mns 581–595. 122 Supra, mns 7-8; Schabas, Genocide in Int’l Law (2nd ed.), 388. 123 See on this provision Gaeta, EJIL 10 (1999), 173; Triffterer, in: Triffterer, ICC Statute (2nd ed.), Article 33, mn. 30; Werle, Int’l Criminal Law (2nd ed.), mns 593–5. 124 Dinstein, Defence of ‘Superior Orders’, 87–90; Robinson, Genocide Convention, 72–3. 125 Article II, mns 1, 104, 106–114. 126 Infra, mn. 70. 127 See Article 31 ICC Statute. 128 See further in general defences Eser, in: Triffterer, ICC Statute (2nd ed.), Article 31, passim; Schabas, Genocide in Int’l Law (2nd ed.), 388–99; Werle, Int’l Criminal Law (2nd ed.), mns 534–617. 121

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of the crime, however, it seems almost inconceivable that they could be successfully invoked to justify the destruction of a protected group. Another generally available defence, namely consent, is not applicable in the first place, as the victims of genocide are not in a position to waive their group’s right to existence.129 3. Mitigating and aggravating factors When a ge´nocidaire has been found guilty, he or she will receive a sentence 68 reflecting the gravity of his or her conduct. The Genocide Convention does not prescribe specific sentences, nor does it list factors that could mitigate or aggravate sentences. In principle, sentencing is a matter for the domestic or international tribunal that has reached the verdict, and that will apply its own rules on sentencing. Still, the Convention is not neutral on sentencing. For once, Article V clarifies that penalties must be ‘effective’. Moreover, Article IV implicitly excludes some potential mitigating factors. This is notably true for ‘status-based’ mitigating factors. Even before the adoption of the Convention, the military tribunals of Nuremberg130 and Tokyo131 had rejected the idea that sentences could be reduced for persons holding (high) office simply because of their personal status. Modern international criminal law statutes, while admitting (at least impliedly132) the plea of mitigating circumstances for superior orders, have followed a similar approach. The ICTY Statute (Article 7 paras 2 and 4), the ICTR Statute (Article 6 paras 2 and 4)133 and the ICC Statute (Article 27 para. 1)134 all explicitly exclude mitigation of punishment by virtue of the official position of the perpetrator (in contrast to acting under superior orders). 129

See for further detail Article II, mn. 5. The IMT Charter provided: ‘Article 7: The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment. Article 8: The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.’ 131 Article 6 of the IMTFE Charter provided: ‘Neither the official position, at any time, of an accused, nor the fact that an accused acted pursuant to order of his government or of a superior shall, of itself, be sufficient to free such accused from responsibility for any crime with which he is charged, but such circumstances may be considered in mitigation of punishment if the Tribunal determines that justice so requires.’; see also Piccigallo, The Japanese on Trial, 12. 132 The ICC Statute is silent on the specific determination of sentence if superior orders (which never lead to impunity in cases of genocide, Article 33 para. 2) are invoked. But reading together Articles 27 para. 1 and 33, a mitigation of penalty in such cases seems to be possible, see also Triffterer, in: Triffterer, ICC Statute (2nd ed.), Article 27, mn. 23. 133 The pertinent provisions of each the ICTY and the ICTR Statute read by the same wording as follows: ‘2. The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment. … 4. The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.’ 134 Article 27 para. 1 of the ICC Statute reads as follows: ‘… official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.’; for further details see Triffterer, in: Triffterer, ICC Statute (2nd ed.), Article 27, mns 22–5. 130

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Article IV 69–71 This approach also applies to sentences imposed for the crime of genocide. The equal treatment of perpetrators as to whether to punish is a reflection of the Convention’s general purpose to effectively prevent and punish genocide. An unequal treatment as to how to punish would contravene this rationale. A systematic interpretation of Article IV and Article V read together also demands the personal status to be irrelevant for the extent of a penalty. According to Article V, penalties for ge´nocidaires must be ‘effective’.135 Unequal penalties for equal behaviour, based only on the personal status of the convicted, would not be effective. If some persons are accorded privileges for their status irrespective of their genocidal acts, the specific wrong of genocide is not addressed. Moreover, the general acceptance of genocide as one of the worst crimes possible would suffer if penalties could be lessened for persons holding office. This would also contravene the object and purpose of the Convention. If anything, in relation to perpetrators acting in their official capacity, aggravated forms of punishment might be possible. If it can be proven that a ge´nocidaire was able to execute his or her crimes more effectively or easier by exploiting his or her position, the wrong committed would be even more incriminatory. In such cases (though not generally), official capacity would indeed be an aggravating, not a mitigating, factor.136 70 The contrary can be said about superior orders. Although such plea cannot establish a defence, it indeed can work as a mitigating factor.137 Taking into account the many personal influences that can come along with a respective order such as physical or psychological pressure, fear of consequences of disobedience for instance, the act of the addressee of an order may be considered less grave than the act of the superior. Such considerations have been accepted since the Nuremberg and Tokyo precedents.138 Article IV does not generally exclude mitigation for genocide as long as punishment is warranted and the penalty is ‘effective’ (Article V). Within this abstract framework, the punishment will reflect the personal guilt of perpetrators, which may very well differ even if they are involved in one and the same act of genocide.139 69

4. Statutory limitation 71

Finally, Article IV’s duty to ensure punishment could be affected by statutory limitations – an issue rarely discussed,140 but of practical relevance. The Genocide Convention itself does not address the matter.141 Two decades following the Convention’s adoption, however, the matter was dealt with in the 1968 Convention on the Non-Applicability of Statutes of Limitations to War Crimes and Crimes Against Humanity.142 In pertinent part, Article I of that Convention provides as follows: 135

See Article V, mns 35–49. Werle, Int’l Criminal Law (2nd ed.), mn. 650 (including further references). 137 Werle, Int’l Criminal Law (2nd ed.), mn. 588 (including further references). 138 Supra, mn. 68. 139 See also supra, mn. 25. 140 Cassese/Gaeta et al., Cassese’s Int’l Criminal Law (3rd ed.), 313–5; Werle, Int’l Criminal Law (2nd ed.), mn. 687. 141 Schabas, Genocide in Int’l Law (2nd ed.), 486–90. 142 See also the European Convention on the Non-Applicability of Statutory Limitations to Crimes against Humanity and War Crimes (Article 1). While the latter Convention has attracted 136

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‘No statutory limitation shall apply to the following crimes: … the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.’

As Article I clarifies, the duty not to apply statutory limitation applies retroactively, namely ‘irrespective of the date of [the] commission [of the crimes]’.143 A further three decades on, Article 29 of the Rome Statute provided that ‘the crimes within the jurisdiction of the Court [incl. genocide] shall not be subject to any statutory limitation’. At least those state parties to the Genocide Convention that are also bound by the 1968 Convention and/or the Rome Statute are therefore under a duty not to apply statutory limitations to genocide. Both Article 29 of the Rome Statute and the 1968 Convention thus facilitate, and reinforce, the central purpose of Article IV. While the customary international law status of Article 29 of the Rome Statute 72 has been doubted,144 much suggests that the same should hold true for state parties to the Genocide Convention that are not bound by the Rome Statute or the 1968 Convention. Read conjointly, Articles IV, V, VI and VII might be taken to contain an implicit ban on statutory limitation, as otherwise the effective punishment, prosecution and extradition of ge´nocidaires would be undermined.145 As a consequence, the obligation of every member state to punish perpetrators of genocide affects also conflicting national rules on statutory limitation. The prosecution of genocide is not limited by time; if such limits exist in municipal law, member states are obliged not to apply them to cases of genocide, in accordance with Article V.

D. Concluding observations Article IV is a central pillar of the Convention’s regime for the punishment of 73 genocide. As set out in the preceding sections, it imposes upon all state parties to the Convention a duty to ensure the punishment of perpetrators of genocide. The wording of the provision (together with Article VI) admits such interpretation, as it is not addressed to particular states (such as territorial states with regard to mandatory jurisdiction pursuant to Article VI), but to all states. It is submitted that this construction of the provision best explains the deliberate use of the terms ‘[p]ersons committing genocide or any of the other acts enumerated in Article III shall be punished’ and meets the Convention’s object and purpose to effectively punish genocide. This is the first and foremost function of Article IV. The second function of Article IV concerns immunity. It has been shown that 74 Article IV, read together with Article VI, constitutes an implied waiver of immunity if otherwise the duty to ensure the punishment of perpetrators cannot be complied with. This is true at the national or international levels, regardless of whether few ratifications, there is much international practice supporting the exclusion of limitations, see e. g. GA Res. Res. 2583 (XXIV), GA Res. 2712 (XXV) and GA Res. 2840 (XXVI), as well as the references in Rule 160 of the ICRC Study on Customary Rules of International Humanitarian Law. 143 Express clauses can also envisage ‘optional retroactivity’: see e. g. Article 7 para. 2 of the Vienna Convention on State Succession in Respect of Treaties, which enables a state party to ‘make a declaration that it will apply the provisions of the Convention in respect of its own succession of States which has occurred before the entry into force of the Convention.’ 144 Cassese/Gaeta et al., Cassese’s Int’l Criminal Law (3rd ed.), 314–5; Schabas, in: Triffterer, ICC Statute (2nd ed.), Article 29, mns 2–3, with references to some international attempts to explicitly rule out a prohibition of statutory limitation for genocide. 145 Schabas, Genocide in Int’l Law (2nd ed.), 486.

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Article IV 74, 75 genocidal acts have been carried out in a personal or official capacity. In the wake of Nuremberg and Tokyo, this principle proved readily acceptable to state parties in 1948. As the first treaty-based exception to immunity, Article IV can be said to have paved the way for the development of subsequent immunity exceptions, finally cumulating in the rules of the ICC Statute and the emerging immunity exception for ‘core crimes’, now applicable at least in international criminal proceedings.146 75 While the unavailability of immunities for genocide seems accepted as far as international trials are concerned, it remains a challenge in proceedings before national courts. Notwithstanding the language of Article IV, immunities and other obstacles to the effective punishment of genocide continue to be invoked in breach of Article IV. This is particularly problematic as under the current system of criminal justice, international tribunals are hardly able to deal with large numbers of cases. As the domestic prosecution of genocide and related acts is becoming more common, compliance with Article IV is vital; robust insistence, by member states and the international community at large, that perpetrators of genocide ‘shall be punished’ is essential. 146

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This is especially true in regard of the ICTY jurisdiction, supra, mn. 60.

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Article V The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide or of any of the other acts enumerated in Article III. Table of Contents: A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Personal scope: ‘contracting parties’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Procedural and material scope: implementation and enactment of legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘necessary legislation’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. ‘legislation’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. ‘necessary’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘in accordance with their respective constitutions’ . . . . . . . . . . . . . . . . . . . a. Material limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Constitutionality of the implementation procedure . . . . . . . . . . . . . . 3. ‘to give effect’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘provide effective penalties’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. Direct link between offence and penalty . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Form and extent of penalties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c. Sub specie the ICC Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Consequences of non-compliance with ‘undertake to enact’ . . . . . . . . . D. Concluding observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

mn. 1 4 8 9 10 12 13 16 23 24 27 29 35 38 40 47 50 51

A. Introduction Article V of the Convention provides that state parties are obliged to give effect to 1 the Convention through the enactment of domestic legislation.1 Crucially, the obligation contained in this provision goes beyond the mere obligation to ratify the Convention itself.2 Article V specifically sets out both the means of implementation (‘legislation’) and the consequences that ought to flow from any breach of this domestic implementing legislation (‘effective penalties’).3 In short, the central imperative of Article V is to bring about the enactment of domestic (criminal) legislation that reflects the substance of Articles II and III of the Convention and which is necessary for states to meet the more extensive obligations set out in Article VI. Article V can be seen as a somewhat uncontroversial provision having attracted 2 little attention during the drafting of the Convention or subsequently.4 Nevertheless, in ‘translating’ the obligations contained within the Convention into domestic law, 1 This terminology is meant to be neutral. However, the specific meanings of other expressions like ‘incorporation’, ‘adoption’ and ‘transformation’ vary from time to time, see also Dupuy, International and Domestic Law, in: MPEPIL, mns 47–8. 2 See further Article XI. 3 Dupuy, International and Domestic Law, in: MPEPIL, mn. 45. 4 In fact the provision was even suggested as being somewhat unnecessary altogether: Drost, Genocide, 128–9.

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Article V 2–5 Article V plays a not inconsiderable role in facilitating the effectiveness of the Convention. Article V requires both the transposition of the international obligations contained within the Convention into domestic law (in dualist systems) and the enactment of domestic criminal legislation where necessary, a point to be returned to. This is essential as domestic law (leaving aside international criminal law) is the most powerful means to enforce the purposes of international treaties and particularly to effectively fight against genocide. A proper implementation of the duties stipulated by the Convention, including specific criminal law, is thus the ‘litmus test’ to assess whether a state party has indeed given effect to this treaty. Within the broader scheme of the Convention, Article V plays a central role for the effectiveness of the whole Convention as well as for the interpretation of other provisions within this treaty. 3 Article V is significant in being the first treaty provision in modern international law requiring qualified criminal legislation to be enacted, and has had significant impact on the extent to which treaties have interacted with domestic criminal law more generally. Whilst the notion of the inclusion of an obligation on states to ‘provide effective penalties’ at the time of the drafting of the Convention could be characterised as a surprising infringement on a state’s discretion as to how to implement a treaty, it would appear to have been accepted by states with little complaint. And indeed, Article V has had significant influence on subsequent treaties as a result. Many other conventions, especially those relating to terrorism, have followed the example of Article V in providing an obligation on states to enact specific domestic criminal law provisions.5

B. Drafting history 4 From the beginning of the UN’s work on genocide, it was clear that the future Convention would contain some normative statement regarding the duty of domestic implementation. As early as 11 December 1946 with the adoption of GA Resolution 96 (I) the first step was taken in drafting the provision that would later become Article V. The Resolution stated that: ‘The General Assembly, therefore, … Invites the Member States to enact the necessary legislation for the prevention and punishment if this crime;’.6

Ever since this resolution the adoption of domestic implementing legislation to prevent and punish genocide was seen as an essential core feature of the Genocide Convention. It would appear that from the very beginning of the drafting period there was broad consent on the necessity of requiring the adoption of national implementing legislation. These features accord with the views of Raphael Lemkin who believed that a rule providing for national criminal legislation on genocide was indispensable to effectively oppose the ‘crime of crimes’.7 5 The Draft Convention prepared by the UN Secretariat in May 1947 and adopted by the Secretary General of 26 June 1947 reconsidered this requirement. The draft read as follows: 5

Although different, more precise, language has often been used, infra, mn. 41. UN Doc. A/RES/96(I) (emphasis in original); see also Robinson, Genocide Convention, 17–8 and 121. 7 Schabas, Genocide in Int’l Law (2nd ed.), 401. 6

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‘Article VI: [Provisions Concerning Genocide in Municipal Criminal Law] The High Contracting Parties shall make provision in their municipal law for acts of genocide as defined by Articles I, II, and III, above, and for their effective punishment.’8

The original idea of Resolution 96(I) had been transferred to a single draft article and extended by the word ‘effective’ to qualify the aspect of punishment. In its comment on Article VI of the Draft Convention the Secretariat declared that national criminal law provisions on genocide are essential. Additionally, they shed light on the issue of penalties which they said should be ‘sufficiently rigorous’ to make the punishment effective.9 In short, the drafting states held the idea of providing municipal criminal law provisions on genocide including considerable penalties for ge´nocidaires to be essential to the later Convention. This draft underwent revision by the Draft Convention prepared by the Ad Hoc 6 Committee.10 Article VI of the Ad Hoc Committee Draft was similar to the final version of Article V of the Convention: ‘The High Contracting Parties undertake to enact the necessary legislation in accordance with their constitutional procedures to give effect to the provisions of this Convention.’11

It was in the Ad Hoc Committee where the provision of ‘to give effect…’ was inserted.12 By adding these words, the drafters intended to clarify that not only national criminal law but domestic legislation in its entirety had to consider the purposes of the Genocide Convention. Yet the Ad Hoc Committee Draft did not specifically envisage penalties for genocide in Article VI or in Article VII. The final wording of Article V came about as result of a Soviet amendment in the 7 Sixth Committee. In response to US criticisms that the draft version could be regarded as limiting the obligation in Article V to criminal law sanctions alone (although the contrary was recorded in the Ad Hoc Committee), the formulation ‘in particular, to provide effective penalties…’ was introduced to (still) Article VI by the Sixth Committee.13 In the wake of continuing criticism of this provision for being narrower and more ambiguous than previous versions a further amended version introduced by Australia in the Sixth Committee was unanimously accepted.14 However this Australian draft was rejected by the GA which adopted the text as it stood after the adoption of the Soviet amendment as the final version of Article V.

C. Interpretation In providing a cornerstone obligation that states are obliged to enact domestic 8 criminal legislation under the Convention, Article V is necessarily related to Article IV, which makes penalties for ge´nocidaires mandatory.15 The wording of Article V has both a personal and a substantive scope. This provision’s addressees, i. e. (at least) the contracting parties, cover the personal scope. The substantive scope is, however, more complex. The parties to the Convention have, ‘in accor8

UN Doc. E/447, 8; see also Robinson, Genocide Convention, 122–30. UN Doc. E/447, 37. 10 UN Doc. E/794, see also Robinson, Genocide Convention, 131–7. 11 UN Doc. E/794, 27. 12 UN Doc. E/794, 28. 13 Schabas, Genocide in Int’l Law (2nd ed.), 402. 14 UN Doc. A/C.6/SR.97, see also Schabas, Genocide in Int’l Law (2nd ed.), 403. 15 See also Article IV, mns 24–32. 9

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Article V 8–12 dance with their respective constitutions’ to create ‘necessary legislation’ in line with Articles II and III and must additionally guarantee ‘effective penalties’. It remains unclear, though, what exactly is meant by these terms. Similarly the means of implementation need to be explored. In order to more carefully examine these terms, the constitutive elements of Article V can be divided into its personal scope as well as its procedural and material scope. Subsequently the consequences of noncompliance will be assessed.

I. Personal scope: ‘contracting parties’ 9 Article V is addressed to the ‘contracting parties’ who are the states party to the Convention. The procedural means through which it is possible to become a contracting party are set out in the protocolar provisions of the Convention.16 In straightforward terms, this provision applies to all states that have ratified the Convention. II. Procedural and material scope: implementation and enactment of legislation 10 The wording of Article V obliges the addressees to fulfil several material requirements after the domestic ratification of the Convention, namely to enact ‘necessary legislation’ which is ‘in accordance with [the state’s] constitution’ in order to ‘give effect’ to this Convention. As a qualified substantive obligation, ‘effective penalties’ for ge´nocidaires have to be established. 11 The duty to enact domestic law as per Article V applies irrespective of whether or not a particular provision of the Convention is self-executing or not. Of course, if national implementation legislation is required, the Genocide Convention as a whole is not self-executing.17 Domestic laws must be seen to exist – and in many cases, Convention provisions will depend on national law to be implemented effectively. This does not mean, however, that where the Convention itself imposes strict and clear obligations that require no further implementation act (such as, for example, with respect to Article IV),18 it could never be self-executing. But in the light of Article V’s express duty to legislate, the question of self-execution is of lesser relevance than in other treaties. 1. ‘necessary legislation’ 12

Article V provides that the contracting party must enact ‘necessary legislation’. Legislation does not reflect decisions on individual cases, but rather comprises rules of municipal law, formulated in an abstract way and addressed to any individual. The further obligation contained in this provision ‘to provide effective penalties’ (as discussed in greater detail infra) indicates that the relevant legislation must also include criminal law provisions. There are two aspects of this provision that deserve particular focus, namely (a) whether the legislation in question must be enacted 16

See Article XI. Yet some parts can indeed be regarded as self-executing, foremost the duty to annul immunities for pertinent persons as reflected by Article IV, there in mn. 49; see also infra, mn. 29; Starkman: ASILSILJ 8 (1984), 1, 8; Wouters/Verhoeven, Domestic Prosecution of Genocide, 4. 18 Article IV, mn. 49. 17

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exclusively by legislative instruments such as statutes and (b) the exact scope of the obligation and specifically when legislation ought to be termed ‘necessary’. It is to this first issue to which will be turned now. a. ‘legislation’ Before delving into the character of which law-making process ought to be 13 qualified as ‘legislation’ it should be noted that, in the absence of any reference to ‘criminal’ or ‘penal’ law as in the case of Article VI, legislation in the sense of Article V is not limited to the criminal law. This interpretation is supported by the wording of this Article including the reference to ‘effective penalties’. This is a clear reference to the criminal law but it is qualified by the clause ‘in particular’. As such, Article V, whilst making specific reference to criminal law penalties, refers to ‘legislation’ in a broad sense that goes beyond criminal laws. In other words, as long as the legislation is ‘necessary’ it does not matter whether it is of a criminal or civil nature. For instance, states are under an obligation not to provide immunity for state officials under Article IV.19 This obligation will often entail amendment of administrative or constitutional law where such immunities are typically provided for. However there are limitations on what can be considered legislation for the sake 14 of Article V. For instance, specific individual measures passed by government or judicial organs cannot be subsumed under the notion of ‘legislation’ as they are not of an abstract-general but a concrete-individual nature. In other words, the precise terms of Article V of the Convention can be said to be addressed to the legislature of the contracting party. This is normally not the executive or the judiciary, at least as long as they are not competent to pass abstract-general norms. Interestingly, more modern international treaties seem to have moved away from this approach and now regularly provide for a duty to implement treaty obligations also by administrative (and even in some cases judicial) means.20 A contentious legal issue relates to whether legislation covers not only the formal 15 enactment of written statutes but also the common law principle of binding precedent derived from case law. If the term ‘legislation’ was also to cover the latter a member state with consistent judicial precedent in line with the obligation created under Article V would not need to enact further criminal law provisions (assuming the requirements conferred by the ‘necessary’ condition are fulfilled21). The word ‘legislation’ denotes ‘the process of making or enacting laws’.22 This could be read 19

Article IV, mns 45–62. See for example Article 2 para. 1 of the UN Convention Against Torture of 10 December 1984: ‘Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.’ See also Article 9 of the Ottawa Treaty of 18 September 1997, Officially known as the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personal Mines and their Destruction; its Article 9 reads as follows: ‘Each State Party shall take all appropriate legal, administrative and other measures, including the imposition of penal sanctions, to prevent and suppress any activity prohibited to a State Party under this Convention undertaken by persons or on territory under its jurisdiction or control.’ Others at least do not limit a generally stipulated duty to implement specific treaty provisions, e. g. Article 5 para. 5 of the Arms Trade Treaty of 27 March 2013, UN Doc. A/ CONF.217/2013/L.3: ‘Each State Party shall take measures necessary to implement the provisions of this Treaty …’ 21 Infra, mns 16-22. 22 Oxford Dictionary, 1009 (‘legislation’, para. 2). 20

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Article V 15–18 to cover ‘judicial law-making’ by means of precedent if it is understood as particular process of making law. The requirements for law to be ‘enacted’ however suggests otherwise; it would appear to suggest that what is being referred to is formal written statutes passed by the legislature.23 This view is supported by the equally authentic French and Spanish versions of Article V. Their ‘mesures le´gislatives ne´cessaires’ (French) as well as ‘medidas legislativas necesarias’ (Spanish) refer to a legislative procedure that has to be undergone during the process of enactment.24 In addition, a legislative procedure is conceptually different from a criminal procedure that creates law through binding precedent. The latter is jurisdictional in nature whereas the former has an exclusively formal-legislative character. Considering this, ‘legislation’ in the sense of Article V is best read to require written statutory law resulting from a formal enactment procedure. Another question is, however, whether such legislation is still ‘necessary’ when case-law principles already outlaw genocide.25 b. ‘necessary’ The ordinary meaning of the adjective ‘necessary’ refers in general to a circumstance ‘needed to be done, achieved, or present; essential’.26 Employing the settled methods of treaty interpretation it can be said that legislation is ‘necessary’ under Article V only when the substance of the domestic law of a contracting party does not include in clear and precise terms the elements of Articles II and III.27 If the domestic law of a contracting party already conforms to these provisions of the Convention further domestic legislation is not ‘necessary’ under the terms of Article V. 17 The same conditions apply to the non-criminal law elements of the Genocide Convention aimed principally at the prevention of genocide. However it should be noted that for non-criminal law provisions the threshold to fulfil the necessity requirement is lower. This is so since Article V only refers to an obligation to ensure ‘effective penalties’ under criminal law. As such, outside criminal law, it may suffice to adopt the Genocide Convention as a whole.28 Doing so, depending on the specific national adoption procedures and principles, every provision that does not need further transposition into municipal law is capable of becoming a part of municipal law.29 18 An additional controversial legal issue that arises as a result of Article V is whether new domestic legislation must be enacted when the existing ordinary criminal law already covers all of the elements of Articles II and III, for example the law relating to the crime of homicide, but does not explicitly refer to genocide.30 Some states31 16

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Oxford Dictionary, 576 (‘enact’, para. 1): ‘make (a bill or other proposal) law’. See also infra, mn. 25. 25 Infra, mn. 20. 26 Oxford Dictionary, 1186 (‘necessary’, para. 1). 27 The ordinary meaning rule is the first means of treaty interpretation according to Article 31 para. 1 VCLT. 28 Divergences may exist, however, in cases where a new text becomes national law and this text does not completely reflect the Convention. But this is a question of giving effect to the Convention, infra, mns 31-3. 29 Supra, mn. 11. 30 Although at least as to all elements of Article II complete coverage by domestic provisions seems to be quite unlikely; Wouters/Verhoeven, Domestic Prosecution of Genocide, 3–4. 31 Inter alia Australia (communication from Australian Government, 9 March 1999), Bahrain (communication from State of Bahrain, 19 May 1999), Belgium (UN Doc. E/CN.4/Sub.2/416, 24

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argued that in such cases a new special offence of genocide would be redundant and the enactment of further legislation not necessary.32. However whilst the laws of homicide and genocide might produce the same punishment for ge´nocidaires in relying solely on the law of homicide the commission and punishment of the crime of genocide would remain hidden.33 In simple terms, it makes a huge difference, particularly to victims groups, whether a perpetrator is convicted of genocide or homicide.34 Any domestic criminal law provision that does not explicitly refer to genocide lacks the stigma of unlawfulness vis-a`-vis genocide; it would not gain public perception of a conditio sine qua non for prevention of genocide. Furthermore, the systematic context of Article V supports the view that a 19 genocide-specific offence must be included in municipal criminal law as ‘necessary’ even though homicide might theoretically cover all material aspects of the crime. Article V contains a requirement to ‘provide effective penalties for persons guilty of genocide’.35 The verdict of guilt of genocide and a subsequent penalty are only available if a corresponding provision criminalising genocide exists in municipal law. In returning to the issue of case law under Article V, it might be possible that 20 criminal law precedents on genocide exist which meet the requirements set out in Article V such as penalising genocide explicitly, reflecting the contents of Articles II and III as well as establishing ‘effective penalties’. Under such circumstances, the purpose of the Genocide Convention would appear to be already fulfilled by case law, and as such domestic legislation would not appear to be necessary. In such cases a duty to replace sufficiently precise case law with statutes is not necessary. However, if such case law does not exist, the duty to enact legislation to fill the gap remains. An additional discrete legal issue that arises is that of defences to the crime of 21 genocide. It has been argued that the Article V obligation to enact domestic legislation also entails an obligation to enact corresponding defences.36 However, neither the wording nor object and purpose of the Convention demand the creation of genocide-specific defences. Rather, those defences that form part of domestic criminal law apply also to the crime of genocide. Only as far as possibly existing municipal law defences might limit the applicability of the Convention’s provisions, it would be necessary to exclude some defences for genocide, e. g. visa`-vis Article IV.37 para. 498, n. 2), Canada, Ecuador (UN Doc. E/CN.4/Sub.2/416, para. 498, n. 4), Egypt (UN Doc. E/ CN.4/Sub.2/416, para. 498, n. 3), Greece (UN Doc. E/CN.4/Sub.2/303/Add.5), Iceland, India (UN Doc. E/CN.4/Sub.2/303/Add.8), Iraq (UN Doc. E/CN.4/Sub.2/416, para. 498, n. 9), Norway, Pakistan (UN Doc. E/CN.4/Sub.2/303/Add.10), Senegal (communication from Senegalese Government, 7 June 1999), Turkey (UN Doc. E/CN.4/Sub.2/303/Add.1), Ukraine; further references in Robinson, Genocide Convention, 75, and Schabas, Genocide in Int’l Law (2nd ed.), 407. 32 Robinson, Genocide Convention, 74–5. Despite the fact that in some of these states, however, their own subsequent criminal procedures proved this view to be a misinterpretation of the law: in the Australian case Nulyarimma v. Thompson (1999) as well as in the Belgian attempts to prosecute Rwandan ge´nocidaires, see for further references Wouters/Verhoeven, Domestic Prosecution of Genocide, 3–5. 33 See also Saul, in: Gaeta, Genocide Convention, 66–7. 34 Robinson, Genocide Convention, 33. 35 Emphasis added. 36 Schabas, Genocide in Int’l Law (2nd ed.), 369. 37 Article IV, mns 63–7.

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Finally, the Rome Statute of the ICC may play a relevant role in terms of necessary legislation. It could be argued that states by their status of state parties to the ICC, warranting international criminal legislation on genocide, regularly fulfil their conventional obligation to enact necessary legislation as a whole. This is certainly true where, when implementing the Rome Statute, states enact rules specifically criminalising genocide. Equally, in monist states, it might be sufficient for the national legislator simply to give direct effect, domestically, to Article 6 of the Rome Statute. By contrast, a general reference, in domestic law, declaring the Rome Statute tout court to be applicable domestically would not satisfy the need for specific criminal legislation outlawing genocide.38 More generally, it needs to be emphasised that Article V requires national legislation for the purposes of national criminal proceedings within member states; this duty cannot be complied with by ‘relegating’ genocide-related proceedings to the ICC (under the principle of complementarity39) or another international criminal tribunal. 2. ‘in accordance with their respective constitutions’

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The stipulation that domestic legislation must be enacted ‘in accordance with their respective constitutions’ is open to a twofold interpretation, namely in a material and a procedural way.40 From a procedural perspective, the means of implementing the legislation stipulated by this Article might have to meet all municipal standards on constitutionality. From a material perspective this formulation could limit the actual substance of the stipulated legislation. Following this interpretation the scope of the crime would be defined by the pertinent state’s constitution (and not the Genocide Convention). Whilst under Article 27 VCLT municipal law is generally not capable to limit the performance of an international law obligation states may deviate from this rule if the specific treaty explicitly enables them to do so as the provisions of the VCLT are residual in nature.41 The formulation of Article V may establish such an exemption from the VCLT. This aspect deserves closer examination. a. Material limitation

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According to an early opinion given shortly after the Genocide Convention had been created, the material scope of the national legislation implementing the Convention is strictly limited by the respective state’s constitution.42 The same approach was implicit in the United States’ reservation to Article V.43 In the 38 It is possible and likely that ge ´nocidaires are prosecuted and convicted by ordinary criminal law, e. g. for homicide. But then the principle of ne bis in idem according to Article 20 para. 3 ICC Statute is likely to prevent a subsequent prosecution for genocide; infra, mn. 49. 39 Further details and references in Williams/Schabas, in: Triffterer, ICC Statute (2nd ed.), Article 17, mns 21–8. 40 Robinson, Genocide Convention, 76. 41 Aust, Modern Treaty Law and Practice (2nd ed.), 7; Aust, Vienna Convention, in: MPEPIL, mn. 6; see also Saul, in: Gaeta, Genocide Convention, 78. 42 Anonymous author(s), YaleLJ 58 (1948–1949), 1142, 1145–6. 43 ‘(2) That nothing in the Convention requires or authorizes legislation or other action by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.’, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-1&chap ter=4&lang=en#EndDec; Saul, in: Gaeta, Genocide Convention, 80; see also Reservations and Annex 4.

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instance, the US was concerned about a possible conflict between the need to criminalise incitement to genocide (Article III lit. (c))44 and the right to freedom of speech guaranteed by the US constitution.45 The common means of treaty interpretation as laid down in Article 31 VCLT, 25 however, preclude any such ‘material limitation’.46 The ordinary meaning of the expression ‘in accordance with their respective constitutions’ cannot be referred to isolated from its grammatical context. It unequivocally refers to the word ‘enact’ and as such only the procedural enactment of legislation has to meet constitutional conditions and not the resulting material legal provisions themselves. This interpretation becomes even clearer in the light of the equally binding47 French and Spanish texts of the Convention: As mentioned above,48 they refer – unlike the English notion ‘necessary legislation’ – to ‘mesures le´gislatives ne´cessaires’ (French) and ‘medidas legislativas necesarias’ (Spanish). These expressions are exclusively procedural in nature as they refer to ‘legislative means’ instead of more general ‘legislation’. This interpretation is also supported by the object and purpose of the Genocide 26 Convention, which could be seriously contravened if national constitutions were able to limit the material scope of criminal provisions on genocide. The same view was expressed during the drafting of the Convention.49 It is moreover supported by general principles governing the relationship between international treaty law and domestic law, as reflected in Articles 27 and 46 VCLT. Pursuant to these rules, if provisions of domestic law conflict with obligations under international treaties (such as the Genocide Convention), the domestic law ‘obstacle’ has to be removed so to ensure the effective implementation of the international treaty.50 The only – narrow – exception to this general conflict rule is to be found in Article 46 para. 1 VCLT, which however only covers manifest and evident violation of a fundamentally important municipal law provision.51 In respect of Article V, however, a ‘manifest violation’ of municipal law will hardly ever be conceivable. b. Constitutionality of the implementation procedure As a separate issue, it needs to be inquired whether legislation enacted not ‘in 27 accordance with [a member state’s] respective constitution[s]’ would fall foul of the implementation requirement of Article V. National constitutions usually reflect the respective state’s understanding of the interrelation between international and muni44

Article III, mns 6–7. Anonymous author(s), YaleLJ 58 (1948–1949), 1142, 1145–6: ‘… the possibility of conflict between this provision and American constitutional guarantees of free speech is removed by Convention Article V, under which contracting States agree to enact effectuating legislation only in accordance with their respective constitutions.’ 46 See in general Do ¨ rr, in: Do¨rr/Schmalenbach, VCLT Commentary, 521–3; Sorel/Bore´ Eveno, in: Corten/Klein, VCLTs Commentary, 804–6; Villiger, Commentary on the VCLT, 415–7. 47 According to Article 33 para. 4 VCLT, the authentic language versions have to be compared and to be interpreted in the light of the purpose of the treaty, see Article X, mns 7–9. 48 Supra, mn. 15. 49 Robinson, Genocide Convention, 77. 50 Schaus, in: Corten/Klein, VCLTs Commentary, 699, mn. 15. 51 For further explanations see Bothe, in: Corten/Klein, VCLTs Commentary, 1094–7, mns 12– 20; Rensmann, in: Do¨rr/Schmalenbach, VCLT Commentary, 784–95, mns 26–53; Villiger, Commentary on the VCLT, 590–2, mns 11–6. 45

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Article V 27–29 cipal law. They disclose (at least impliedly) whether the state follows a monist or dualist tradition.52 One could conclude from this that the procedural enactment of legislation may depend on whether the respective state follows the monist or dualist theory. These differences regarding the implementation procedures of international law affect, however, only the ratification procedure. Article V of the Convention does not deal with this but goes one step further. States are required to enact legislation irrespective of whether the prior ratification has followed monist or dualist principles. This does not prejudge the question whether violations of constitutional procedures should entail consequences at the level of international law. On the face of it, the formulation ‘in accordance with their respective constitutions’ could constitute a selfstanding international legal requirement – so that procedural violations of domestic constitutional law would be transformed into international wrongful acts, entailing state responsibility. Alternatively, the reference to national constitutions could be merely declaratory, in which case a violation of national constitutional procedures would not entail any international legal consequences. After all, any forms of implementing international law to municipal law always follow national rules. 28 The latter view is preferable. The Genocide Convention inter alia seeks to ensure effective and widespread municipal rules on the prohibition and punishment of genocide. Supervising national procedural law falls outside the Convention’s scope. Procedural requirements concerning municipal law make an effective implementation rather difficult and thus would contravene the purpose of the Convention. Furthermore, raising compliance of national procedural law to the level of international law would mean that the member states had given up their sovereignty on that part of their state law. It is doubtful that they were aware of this when ratifying the Convention and that they would have ratified the Convention at all if they had considered that issue. In the extreme, a state might then claim the Convention voidable as a result of an error according to Article 48 para. 1 VCLT.53 This would also clearly contradict the purpose of the Convention. In the light of these considerations, the requirement that national legislation be enacted ‘in accordance with [the member states’] respective national constitutions’ should not be read as an international legal obligation; even procedurally problematic forms of implementation are internationally valid. 3. ‘to give effect’ 29

Contracting parties are obliged ‘to give effect’ to the aforementioned necessary legislation through each state’s individual transformation or incorporation procedures. The requirement ‘to give effect’ does not apply to the small number of selfexecuting provisions. In all other cases the requirement ‘to give effect’ is generally relevant. As the reference to ‘the provisions of the present Convention’ indicates, this covers more than criminal legislation. By way of illustration, to the extent that Article IV requires the punishment of perpetrators, ‘giving effect’ to the Convention’s provisions might entail legislative action amending national immunity statutes (where they exist). Not in all instances will specific legislative action be 52

See in detail on monism and dualism Crawford, Brownlie’s Principles, 48–111. Although not being an error of fact strictu sensu, that kind of error would be covered by the VCLT as it is not an error of motive, judgment or expectation, see Villiger, Commentary on the VCLT, 607–8, mn. 4. 53

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required though. While it is mandated for criminal law, other aspects of the Convention’s regime could very well be given effect within the existing domestic legal order. What is required is a ‘Convention-friendly’ construction of domestic legal provisions, which e. g. needs to be construed openly so to ensure that the letter and spirit of the Convention are observed at the domestic level. The obligation ‘to give effect’ has a particular meaning in the context of the domestic criminal law as a result of the requirement ‘provide effective penalties’. This phrase indicates that mean adoption of the obligations contained with Articles II and III is not enough to satisfy Article V and that the object and purpose of the provision must be given effect in domestic criminal law. As such, whenever municipal criminal law deviates from the definition of genocide under Article II, the requirement ‘to give effect’ is brought in question. Deviations are possible in two situations: domestic law definitions can be either broader or narrower than that contained in Article II. The first deviation does not pose major problems. Broader definitions of genocide would cover all aspects of Article II, but go beyond it, e. g. by protecting ‘social’54 and ‘political’55 groups alongside the protected groups mentioned in Article II.56 Such broader provisions do not affect the effectiveness of the Genocide Convention and would be in line with Article II, which establishes a minimum baseline definition rather than an exclusive one. Domestic definitions which extend beyond that set out in Article II thus are not prohibited by the Convention. The situation may differ where a domestic definition is so broad that the specificity and the particular normative power of genocide are affected; this may undermine the seriousness of the ‘crime of crimes’.57 However, domestic implementation provisions do not seem to have crossed that line so far. The second problem – that of overly restrictive definitions – is more serious. States whose domestic definitions of genocide are narrower than that of Article II would generally have failed to give effect to the Genocide Convention. This problem is by no means purely academic. At least some states have not included all protected groups mentioned in Article II in their domestic legislation; at times racial58, national59 and ethnic60 groups are omitted. It would appear that such omissions violate the obligation to give effect to all provisions of the Genocide Convention.61 However an interesting nuance appears through examination of the practice in relation to this provision. For instance, Peru’s domestic implementing legislation provides a good example of a definition which does not accord with that set out in Article II but yet effectively ensures the implementation of the Convention. The wording of Article 319 of the Peruvian Co´digo Penal62 is almost identical to the Spanish version of 54

E.g. in Estonia, Latvia, Lithuania, Peru and Spain. E.g. in Bangladesh, Costa Rica, Ethiopia and Panama. 56 See further on national deviations Saul, in: Gaeta, Genocide Convention, 64–5, and Schabas, Genocide in Int’l Law (2nd ed.), 406. 57 Saul, in: Gaeta, Genocide Convention, 64. 58 E.g. in Bolivia. 59 E.g. in Canada. 60 E.g. in Costa Rica. 61 So far also Saul, in: Gaeta, Genocide Convention, 65. 62 See Annex 5 and http://spij.minjus.gob.pe/CLP/contenidos.dll?f=templates&fn=default-codpenal. htm&vid=Ciclope:CLPdemo. 55

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Article V 33–37 Article II of the Genocide Convention except for one notion regarding the protected groups: ‘racial’ is replaced by ‘social’. At first sight this could be a case of a partly broader and partly narrower implementation of Article II. However in the Peruvian understanding, and also in accordance with the ordinary meaning of these notions, ‘racial’ and ‘social’ are not mutually exclusive.63 ‘Social’ is rather a more general term for any group that can be individualised within a society. In order to individualise a social group, distinctive features applying to all group members but not to the other members of the specific society have to be assessed. One of those feasible features is race, but also, inter alia, wealth or origin. ‘Social’ groups thus include ‘racial’ groups, and potentially even cover other groups.64 From this example it becomes clear that an inflexible comparison of words in the Convention and its national implementation legislation will not always lead to a clear result. Instead, the municipal laws implementing the Convention have to be interpreted themselves in order to discern whether the Convention has been given effect. 34 In sum, a state can be said to have fulfilled its general obligation ‘to give effect’ to the Convention when Articles II and III have been completely implemented into the domestic criminal law of the contracting party. In cases of identical wording this is unproblematic. However when the domestic legislation contains different notions it must interpreted on a case by case basis whether the object and purpose of the Convention are completely and identically covered. 4. ‘provide effective penalties’ The obligation to ‘provide effective penalties’ is in addition to the general obligation ‘to give effect’ to the Convention itself. This obligation is limited to the criminal law and operates in tandem with the Article IV stipulation to ensure the punishment of perpetrators of the crime of genocide. Article V in particular specifies that the penalty provided for must be ‘effective’.65 36 In Article V the words ‘in particular’ signal that the requirement ‘to provide effective penalties’ is a specific substantiation of the obligation to give effect to the Convention. Whereas giving effect in general was open to some (limited) discretion by the member states as to how exactly Articles II and III could be implemented in municipal criminal law, this additional qualification is mandatory – only criminal law penalties will be sufficient in order to satisfy Article V. 37 Within this qualified requirement, however, the notion of ‘effective’ remains to be precisely defined. For a penalty to be ‘effective’ under Article V one must first assess whether there is (a) a direct link between the elements of the criminal law 35

63 This is what Bramont-Arias Torres/Garcı´a Cantizano, Manual de Derecho Penal (Peru), 645-B, admit by stating that the nationally implemented text is ‘pra´cticamente ide´ntico’ (practically identical) with the original version of the Convention. 64 This broader definition of genocide makes sense in multicultural countries like Peru. In many parts of the country live different indigenous groups which partly have mixed up. Then the definition of a ‘race’ is not possible, but a definition of groups distinguished by origin indeed is; see on this also Bramont-Arias Torres/Garcı´a Cantizano, Manual de Derecho Penal (Peru), 645-E. As a consequence, the commission of genocide e. g. against a group consisting of mixed tribes in Amazonia by destroying their natural habitat is possible under Peruvian criminal law although the Genocide Convention would not necessarily lead to the same result. 65 No further assessment is needed to consider that ‘persons’ means the same as in the previous Article, see Article IV, mns 18–9.

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offence and the resulting penalty, and secondly (b) the form and extent of this penalty must be further considered. a. Direct link between offence and penalty The word ‘provide’ in Article V must be read along with the term ‘necessary 38 legislation’. Taken together, this means that ‘effective penalties’ cannot stand apart from the national criminal law provisions on genocide. As such, the obligation ‘to provide’ requires the municipal criminal law to assure that the definition of genocide establishing the offence is linked to the mandatory and immediate consequence of a penalty. In other words: Whenever a person is convicted of genocide, there is no discretion by any state entity to decide whether this person should be punished or not.66 National legislation, which leaves open this possibility or the possibility of pardon does not comply with Article V. In addition, the penalty provided for the commission of the crime must not be 39 abstract but sufficiently defined so as to be effective under Article V and comply with the principle of nulla poena sine lege, and in order to act as an effective deterrent. b. Form and extent of penalties In turning to the second element it is argued that states are given greater 40 discretion when it comes to the form and extent of the penalty to be provided. Accordingly, in the current era of international criminal justice, also international tribunals make use of such discretion.67 Under Article V the penalty may be any sanction including a mere rebuke, a fine, imprisonment for a limited time of for life or even the death sentence. It is even suggested that some forms of corporal punishment may on the face of it comply with Article V. However, no matter what kind of punishment is mentioned, the state must clarify the exact extent to which this punishment may be provided in order to be ‘effective’. While requiring ‘effective’ penalties, the Genocide Convention does not explore 41 what is meant by ‘effectiveness’. In this respect, it differs from subsequent treaties requiring domestic criminal legislation, which have progressively become more prescriptive. For example, the Hague Convention for the Suppression of Unlawful Seizure of Aircraft of 16 December 1970 (Article 2) and the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation of 23 September 1971 (Article 3) require state parties to provide for ‘severe penalties’. Later treaties especially (but not exclusively) addressing forms of terrorism require penalties to be ‘appropriate’ and to ‘take into account [the] grave nature [of the crimes]’.68 This trend towards greater normative detail can be taken into account 66

See Article IV, mn. 21. See further with particular reference to the ECCC Hoven, ZStW 125 (2013), 137. 68 See e. g. the UN Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons of 14 December 1973 (Article 2 para. 2), the International Convention Against the Taking of Hostages of 17 December 1979 (Article 2), the UN Convention Against Torture of 10 December 1984 (Article 4 para. 2), the International Convention for the Suppression of Terrorist Bombings of 15 December 1997 (Article 4 lit. (b)), the International Convention for the Suppression of the Financing of Terrorism, of 9 December 1999 (Article 4 lit. (b)) and the International Convention for the Suppression of Acts of Nuclear Terrorism New York of 13 April 2005 (Article 5 lit. (b)). 67

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when interpreting the notion of ‘effectiveness’ under the Genocide Convention. Because of the egregious nature of the crime, it may be assumed that in order to be ‘effective’, penalties for genocide must meet a minimum threshold of ‘severity’. Moreover, as a relative requirement, the grave nature of genocide (as ‘the crime of crimes’) must be considered in the light of each member state’s national scale of penalties in response to equivalent acts established as ordinary crimes. None of this ‘translates’ into a ready-made rule that could be applied mechanically. However, in the light of subsequent practice, it is clear that effective penalties have to reflect the gravity of the crime of genocide. Under Article V any form of penalty that is neither intended nor designed to deter69 the commission of genocide cannot be classified as ‘effective’. Any form of punishment less than imprisonment cannot be considered an effective sanction for the commission of genocide or even only complicity or similar acts as set out in Article III. The question of whether some forms of punishment may be excessive is unclear. For instance the Convention is silent on whether the death penalty or corporal punishment can be considered excessive punishments under Article V.70 As such one must turn to general international law for guidance. Under general international law neither the death penalty nor corporal punishment short of torture can be accurately described as outlawed.71 However given the fact the law between corporal punishment and torture can be fine, this form of punishment is not advised. The Convention does not speak of minimum or maximum periods of imprisonment in terms of punishment and as such guidance must be taken from the range of penalties in each national criminal law system. In doing so, a minimum threshold of a national criminal law penalty for genocide can indeed be defined from the object and purpose of the Convention. It follows from the Convention’s purpose that genocide gains a separate status from ordinary crimes in national law. To establish this qualified position in favour of the ‘crime of crimes’ also in municipal law, it is indispensable that the consequences for ge´nocidaires at least match those imposed for ordinary criminals guilty of the gravest forms of homicide. Otherwise the specific wrong implied by a conviction of genocide could not be displayed and thus a penalty for genocide would not be ‘effective’. It can thus be said at the very least that the punishment for the crime of genocide must not be less than that for homicide under domestic criminal law. The requirement for penalties to be ‘effective’ is limited by considerations of legality. As a general proposition, penalties imposed must be permissible under international law: to give just one example, as much as their wrongdoing is abhorred, perpetrators of genocide must not be subjected to torture as a form of punishment. Debates about the death penalty raise more tangible concerns.72 At

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On the purposes of punishment in international criminal law Hoven, ZStW 125 (2013), 142–52. There was, however, an early discussion on the application of the death penalty for genocide in the 1940ies when an implementation of an international tribunal with jurisdiction over genocide seemed possible, see further Schabas, Abolition of Death Penalty (3rd ed.), 241–2. 71 On a regional level this could be different, infra mn. 45; see further and for more references Kretzmer, Torture, in: MPEPIL, passim. 72 Schabas, Abolition of Death Penalty (3rd ed.), passim. 70

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least in the regional (European73 and Inter-American74) context and under the Second Optional Protocol to the ICCPR,75 states (including state parties to the Genocide Convention) have agreed no longer to impose the death penalty; while there seems to be at least a trend towards its condemnation under general international law.76 In the light of these considerations, the requirements for penalties to be effective cannot be read to require state parties to the Genocide Convention to impose the death penalty upon perpetrators of genocide – and Article V provides no support for its introduction or re-introduction.77 Moreover, state parties to the Genocide Convention that have renounced the death penalty under specific treaties are precluded from imposing it under those other agreements. The Genocide Convention itself is neutral on the matter; but it needs to be construed taking account of the need for effective penalties and the growing concern about the death penalty. It should be noted that this discussion applies mutatis mutandis to the different 46 forms of participation according to Article III lit. (b)-(e). Here, the reference point for defining the minimum ‘effective penalty’ is the national law equivalent to the respective form of participation in ordinary homicide. c. Sub specie the ICC Statute As stated above, being a member state of the ICC does not replace the obligations 47 stipulated by Article V of the Genocide Convention.78 However the operation of the Rome Statute raised two further legal issues. Firstly, does becoming a party to the ICC Statute itself meet the requirement to provide ‘effective penalties’ under Article V? And secondly, what is the relationship between the principle of complementarity and ineffective national criminal law penalties for genocide? Article 6 (in the light of Article 5 para. 1 lit. (a)) ICC Statute does not mention 48 any penalty at all. In fact, the issue of penalties for all the crimes covered under the ICC Statute are addressed in Article 77.79 Under this provision the applicable kind 73 Except for Russia, all other 46 member states of the Council of Europe have ratified the Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty, http://conventions.coe.int/Treaty/Commun/ ChercheSig.asp?NT=114&CM=8&DF=15/03/2013&CL=ENG. Indeed the argument has even been made that the prohibition of the death penalty is regional jus cogens See further Schabas, Abolition of Death Penalty (3rd ed.), 259–309, particularly 308–9, and vis-a`-vis the American states ibid., 319. 74 See for further details Scheinin, Death Penalty, in: MPEPIL, mns 7–12; Ratified by 13 member states, http://www.oas.org/juridico/english/sigs/a-53.html. 75 75 states have ratified the Second Optional Protocol, http://treaties.un.org/Pages/ViewDetails.aspx?mtdsg_no=IV-12&chapter=4&lang=en, see also Saul, in: Gaeta, Genocide Convention, 74–5; Schabas, Abolition of Death Penalty (3rd ed.), 155–210. 76 Political efforts not to impose the death penalty for genocide, however, have been made more than once, see Schabas, Genocide in Int’l Law (2nd ed.), 465–70. Furthermore, a general rejection of the death penalty may, according to Schabas, Abolition of Death Penalty (3rd ed.), 363–77, come closer. Such developments are progressive and desirable, but they do not emanate from the interpretation of the Convention. 77 It is indicative that even though it addresses egregious crimes, the ICC Statute as the most recent contribution does not provide for capital punishment. This might be regarded as a contribution to the developing customary standard against the death penalty; see generally Schabas, Abolition of Death Penalty (3rd ed.), 235–58. 78 Supra, mn. 22. 79 Article 77 ICC Statute reads as follows:

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Article V 48–50 of penalty is always imprisonment; its extent varies between the minimum of one year80 and the maximum of thirty years and life imprisonment. The fact, however, that theoretically even the ICC may punish a ge´nocidaire with just one year of imprisonment raises doubts as to the effectiveness this penalty. The differing lengths of punishments under Article 77 can be attributed to the fact they are designed to be applied to all forms of criminal liability including aiding and abetting as formulated in Article 25 ICC Statute. For that it is necessary that also minor penalties remain applicable. The interpretation of Article 77 ICC Statute itself always stands, as usual, in the light of object and purpose of the ICC Statute. Those single standards of treaty interpretation safeguard a suitable application. As the standard is the same for the Genocide Convention, the constructional indifferences of Article 77 ICC Statute do not hinder an overall qualification as to indeed ‘give effect’ to the Convention and thus comply with Article V. 49 As the ICC Statute does comply with Article V, one could further estimate that its underlying principle of complementarity could support states in giving effect to the Convention when they have failed or are unable to do so themselves. For example, national legislation which aims to unlawfully protect a person from international criminal liability falls within the exception from the ne bis in idem principle according to Article 20 para. 3 lit. (a) ICC Statute. As such, when a ge´nocidaire is on the national level sentenced to a minimal penalty the case would still be admissible to the ICC.81 This mechanism, though, is without prejudice to the national range of penalties but rather is invoked in cases of procedural inconsistencies. Article V instead sets up requirements for national provisions of substantive law. Thus, the ICC Statute cannot be invoked as a sheet anchor in cases of non-compliance with Article V. It does aggravate the lives of ge´nocidaires, but only after false convictions, not ineffective legislation. Once again, also in terms of providing penalties, the ICC Statute does not appear as a substitute for compliance with the Genocide Convention.82

III. Consequences of non-compliance with ‘undertake to enact’ 50 Having outlined all requirements to be fulfilled in order to comply with Article V, the consequences for member states that do not meet their obligations must be addressed. The relevant wording in Article V related to compliance is ‘undertake to enact’. The notion ‘undertake’ implies a well-formulated promise given by all member states to be bound by Article V and to submit to responsi‘1. Subject to article 110, the Court may impose one of the following penalties on a person convicted of a crime referred to in article 5 of this Statute: (a) Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or (b) A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person. 2. In addition to imprisonment, the Court may order: (a) A fine under the criteria provided for in the Rules of Procedure and Evidence; (b) A forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.’ See for further details Fife, in: Triffterer, ICC Statute (2nd ed.), Article 77, passim. 80 Fife, in: Triffterer, ICC Statute (2nd ed.), Article 77, mn. 23. 81 Lafleur, Komplementarita ¨t, 256–60. 82 See also supra, mn. 22.

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bility.83 Any breach of an obligation stipulated in Article V triggers liability and is thus a matter of state responsibility.84

D. Concluding observations Article V is a crucial provision in ensuring the effective operation of the Convention particularly when read together with its neighbour provisions. In addition its symbolic value is notable; as even before the establishment of such a Convention was considered, the obligation to implement national criminal legislation on genocide was Raphael Lemkin’s conditio sine qua non for a successful prevention of Genocide. Beyond symbolic value this provision’s vital function in serving the purposes of the Convention and bringing them into effect are equally important. Its requirements remain relevant today and the adoption of the ICC Statute is an additional weapon in the fight against the crime of genocide. Whilst the ICC Statute operates on the international level on the basis of complementarity, Article V remains the number one international law provision on genocide having influence on national law. Moreover, subsequent development on whether and to what extent the duties emanating from Article V have been complied is a valuable indicator as to the general standing of the Genocide Convention in international law.85 It is easy for states to profess an objection to genocide but it takes considerably more efforts to put such rhetoric into practice by adjusting national law. Thus, the existence of municipal legislation satisfying the requirements set up by Article V is the real genuine statement regarding a state’s intent to prevent and punish genocide. The vast majority of states has indeed implemented municipal criminal legislation particularly on genocide, or at least ratified the ICC Statute and thus accepted the ICC jurisdiction on genocide under the principle of complementarity. Thus, a general practice in international law on the punishment of genocide has been established. This practice is expressed by legal norms and therefore has likewise been executed with the respective opinio juris. In sum, the obligation to provide for individual punishment for genocide under criminal law is now at least a part of customary international law. Even states not party to the Convention have to ensure that genocide within their sphere of influence be prosecuted and punished either under municipal or under international criminal law as applied by the ICC or other international criminal tribunals. 83 Or in the words of the ICJ in the Bosnian Genocide case, ICJ Reports 111 (para. 162): ‘The ordinary meaning of the word ‘undertake’ is to give a formal promise, to bind or engage oneself, to give a pledge or promise, to agree, to accept an obligation. It is a word regularly used in treaties setting out the obligations of the Contracting Parties (see, for example, International Convention on the Elimination of All Forms of Racial Discrimination (7 March 1966), Art. 2, para. 1; International Covenant on Civil and Political Rights (16 December 1966), Art. 2, para. 1, and 3, for example). It is not merely hortatory or purposive. The undertaking is unqualified (a matter considered later in relation to the scope of the obligation of prevention); and it is not to be read merely as an introduction to later express references to legislation, prosecution and extradition.’ 84 Saul, in: Gaeta, Genocide Convention, 60; see for further details Article I, mns 83–97. 85 See the exact figures in Annex 3.

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Article VI Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction. Table of Contents: A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Personal scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘persons’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘charged with …’ .......................................................... II. Explicit legal consequences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. A general duty to cooperate; no nexus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘shall be tried’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. Trial and tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. General obligation to ensure trials of genocide (‘shall’). . . . . . . . . . c. Qualified obligation to perform a trial (‘by’) . . . . . . . . . . . . . . . . . . . . . . 3. ‘competent tribunal of the State in the territory of which the act was committed’ (alternative 1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. Competence in general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Article VI and non-member states . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c. Location where ‘the act was committed’ . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction’ (alternative 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. International penal tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Acceptance of jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Interrelation between both alternatives, sub specie the principle of complementarity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Implied legal consequences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Jurisdiction beyond the alternatives of Article VI . . . . . . . . . . . . . . . . . . . . 2. Obligations for state parties irrespective of own jurisdiction . . . . . . . a. Duty to punish and duty to prosecute: distinction and scope . . b. International cooperation and ‘aut dedere aut judicare’ . . . . . . . . . D. Concluding observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

mn. 1 4 6 9 9 10 14 16 19 20 22 24 26 27 28 29 32 34 38 44 45 45 53 54 60 63

A. Introduction Article VI relates specifically to the procedural aspects of the duty to (ensure) 1 punish(ment of) perpetrators of genocide imposed on contracting parties to the Genocide Convention.1 In particular, this provision prescribes a particular criminal process to be employed in punishing perpetrators. As such, it is closely linked to other provisions of the Convention, notably Article IV stipulating that perpetrators of genocide ‘shall be punished’. Whilst Article IV of the Convention relates to the consequences to be faced by perpetrators (‘punishment’), Article VI relates to the procedure that is to be employed in reaching the conviction referred to in Article IV. 1

See Article IV, mns 28–32.

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Article VI 1–4 As part of the fight against impunity for genocide, Articles IV and VI serve interrelated functions under the Convention. 2 The significance of Article VI is twofold. First, in referring to national and international proceedings, the provision mentions the two possible forms of criminally prosecuting perpetrators of genocide. The establishment of jurisdiction at the national level is the more controversial of the two forms – it being unclear whether prosecution of alleged perpetrators of genocide can be undertaken extraterritorially. By contrast, until relatively recently the prosecution of alleged perpetrators of genocide at the international level was hamstrung by the stunted development of international criminal law. However with the substantial advances made in international criminal law in the last decades, prosecution at the international level is today a viable course of action. However, it needs to be assessed how the system envisaged in Article VI (prescribed in 1948) can be reconciled with contemporary international criminal law. 3 Second, Article VI is relevant also in that it helps assess to what extent state parties – in both the ‘international’ and the ‘domestic’ scenario alluded to in the preceding paragraph – are required to work towards the goal of punishing and prosecuting perpetrators of genocide. Judging from the wording of Article VI, it is not entirely clear whether states are under an obligation to overcome all gaps in the legal framework in order to effectively ensure prosecution. However, read properly and in conjunction with Article IV, Article VI can be construed to impose rather far-reaching duties to ensure prosecution and punishment, encompassing also the principle of aut dedere aut judicare. This interpretation may seem at odds with a number of prominent readings of Article VI; but – as will be shown below – it can be deduced from the wording of the provision and its normative context (notably comprised by Article IV), and is in line with the Convention’s object and purpose.

B. Drafting history 4 GA Resolution 96(I) is silent on the issue of the establishment of jurisdiction with regard to the prosecution of alleged perpetrators of genocide. However, the Secretariat’s Draft Convention2 contained a number of pertinent provisions: ‘Article VII: [Universal Enforcement of Municipal Criminal Law] The High Contracting Parties pledge themselves to punish any offender under this Convention within any territory under their jurisdiction, irrespective of the nationality of the offender or of the place where the offence has been committed. Article IX: [Trial of Genocide by an International Court] The High Contracting Parties pledge themselves to commit all persons guilty of genocide under this Convention for trial to an international court in the following cases: 1. When they are unwilling to try such offenders themselves under Article VII or to grant their extradition under Article VIII. 2. If the acts of genocide have been committed by individuals acting as organs of the State or with the support or toleration of the State. Article X: [International Court Competent to Try Genocide] Two drafts are submitted for this section: 1st draft: The court of criminal jurisdiction under Article IX shall be the International Court having jurisdiction in all matters connected with international crimes.

2

Prepared by the UN Secretariat in May 1947 and adopted by the Secretary General of 26 June 1947; UN Doc. E/447; see also Robinson, Genocide Convention, 122–30.

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2nd draft: An international court shall be set up to try crimes of genocide (vide Annexes).’ (The annexes dealt with the creation of both a permanent and an ad hoc international criminal court.)

Not less than three draft articles and two annexes dealt with the question of jurisdiction, each being progressive in nature given the development of the law at the time.3 First, draft Article VII seeks to establish a principle of universal jurisdiction for genocide. Second, draft Article IX envisages the creation of an international criminal tribunal capable of dealing with the prosecution and punishment of alleged perpetrators of genocide at the international level (a proposal which was not realised in practice until the adoption of the Rome Statute in 1998).4 However, these proposals were faced with apparently insurmountable obstacles in 1947 such as an uncertainty as to how exactly these proposals were to be implemented,5 the legally controversial nature of universal jurisdiction and, perhaps most crucially, lack of support from the major powers such as the USA and the Soviet Union.6 In the Ad Hoc Committee there was significant and protracted disagreement 5 regarding the issue of universal jurisdiction and the proposal was finally defeated.7 Instead, only those states affected by genocide were to be granted jurisdiction. The Draft Convention prepared by the Ad Hoc Committee8 stated: ‘Article VII: [Jurisdiction] Persons charged with genocide or any of the other acts enumerated in Article IV shall be tried by a competent tribunal of the State in the territory of which the act was committed or by a competent international tribunal.’

As such the majority in the Ad Hoc Committee found that the duty to prosecute perpetrators of genocide extended to those contracting parties upon whose territory the act had been committed.9 The Secretariat’s proposals regarding an international criminal tribunal did not receive any real consideration at this stage and only one draft article on this issue survived. A final attempt to provide for universal jurisdiction under the Convention was rejected in the Sixth Committee and the final formulation of Article VI was largely unchanged.10 It should be emphasised, though, that while Article VI imposes a duty on contracting parties to prosecute acts of genocide committed on their territory, the drafters did not mean to exclude the exercise of jurisdiction on other bases; as a consequence, Article VI did not preclude the evolution of international law – a point to be returned to.11

3

See Saudi Arabian draft in 1946; Schabas, Genocide in Int’l Law (2nd ed.), 411. But see also the long-term history of that idea as assessed by Schabas, Genocide in Int’l Law (2nd ed.), 444–5. 5 UN Doc. E/447, 40–3. 6 UN Doc. E/623, alternative draft of Article V; UN Doc. E/AC.25/7, statements IX and X; Schabas, Genocide in Int’l Law (2nd ed.), 446–54. 7 See for details and further references Schabas, JIntCrimJust 1 (2003), 41–3; Schabas, Genocide in Int’l Law (2nd ed.), 412–5; Steven, VirginiaJIL 39 (1998–9), 451–5; Thalmann, in: Gaeta, Genocide Convention, 234–5. 8 UN Doc. E/794, see also Robinson, Genocide Convention, 131–7. 9 Schabas, Genocide in Int’l Law (2nd ed.), 415. 10 Thalmann, in: Gaeta, Genocide Convention, 235. 11 Drost, Genocide, 101–2; Starkman, ASILSILJ 8 (1984), 47. 4

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Article VI 6–8 C. Interpretation 6 Much of the existing literature views Article VI as a fairly limited provision addressing two issues (and two issues only): the exercise of mandatory territorial jurisdiction over genocide and related acts; and an unspecified duty to cooperate with putative international penal tribunals. If Article VI really did not go beyond that, it would be seriously deficient: if government agencies are (not by definition, but in practice) regularly involved in genocide, and if genocide can be perpetrated against a state’s own population – why should prosecution be left to the territorial state? If it were, what would be left of Article IV, which mandates the punishment of ge´nocidaires in no uncertain terms? If states are to cooperate with an international penal tribunal, should they not be required to do so with other states as well? Based on these concerns, the subsequent analysis – just as the commentary to Article IV12 – asks whether Article VI cannot be read differently. It suggests a different – and sharper – reading of Article VI, which takes the provision’s wording, grammar and systematics seriously and seeks to construe it in light of the Convention’s overarching object and purpose, viz. the punishment of genocide. 7 It is argued that Article VI is grammatically divided into three different parts, all of them represented by words used in the provision: ‘persons charged’ – ‘shall be tried’ – ‘by a competent tribunal of the State in the territory of which the act was committed’. The first part (addressing persons as subject to prosecution) appears to be rather unproblematic; it is dealt with in assessing the ‘personal scope’ of Article VI. The subsequent sections, however, may be more controversial. They argue that the stipulation ‘shall be tried’ – parallel to ‘shall be punished’ as set by Article IV – has an autonomous meaning: it imposes an obligation on every state party to the Convention, not just on the territorial state; put differently, it is not restricted to the territorial state whose tribunals are (in the terms of Article VI) ‘competent’. As a consequence, being required to ensure that perpetrators ‘shall be tried’, it is argued that all state parties are to cooperate towards the prosecution and trial, irrespective of whether they have territorial jurisdiction to actually conduct proceedings in a given case. Once Article VI is read in that light, its third relevant part (‘by a competent tribunal of the State in the territory of which the act was committed’) acquires a different meaning than is sometimes assumed. Rather than restricting the scope of Article VI altogether (by obliging only the territorial state), it merely concerns the actual exercise of jurisdiction. In this respect, it distinguishes between explicit mandatory and implicit optional jurisdiction. 8 As already mentioned elsewhere,13 Article VI must be read together with Article IV. Articles IV and VI both relate to ‘persons’ and thus, unlike Article V, do not address member states directly. Whereas Article V stipulates the general requirements of the necessary municipal legal framework state parties have to enact, Articles IV and VI specify the substantial and procedural content of this framework. More specifically, they stipulate that perpetrators of genocide and related acts ‘shall be punished’ (Article IV) and ‘shall be tried’ (Article VI). Both provisions cover jurisdictional issues in relation to both national and international proceedings against alleged perpetrators of genocide. However, Articles IV and VI 12 13

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See also the introductory remarks on the interpretation of Article IV, mns 11–5. Article IV, inter alia mns 11, 31–2, 45–6, 50–8, 72.

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address different subject matters and, crucially, the references to the duty to prosecute under both Articles are subtle but decisively distinct – a point which is examined in greater detail in the following sections.14

I. Personal scope 1. ‘persons’ The meaning of ‘persons’ in Article VI is to be understood in the same way as in 9 Article IV.15 As such, natural persons are necessarily encompassed under Article VI. Beyond that, it remains open to states to adopt – in their national criminal law – a broader definition of ‘persons’, which could also, e. g., cover legal persons. This would apply to both Articles IV and VI; but it is not required by the Convention. 2. ‘charged with …’ The legal consequences of Article VI refer only to persons ‘charged with genocide or any of the other acts enumerated in article III’. Whereas the assigned acts constituting genocide (as reflected by Articles II and III) are the same in Articles IV to IX, Article VI is the only provision of the Genocide Convention referring to a ‘charge’. To ‘charge’ a person means literally, in a legal context, to ‘formally accuse someone of (an offence)’.16 As a formal act, it is not based on proved facts (as the word ‘committing’ in Article IV) but only on allegations, based on available facts at a given time, that a crime has been committed. As such, a reasonable suspicion rather than proof suffices for the sake of Article VI. A charge – or as a synonym: indictment17 – formally initiates a criminal procedure and must emanate from the competent authority, typically a prosecutor. This ordinary meaning correlates with the French and Spanish expressions (‘accuse´es’/’acusadas’) used in the Convention. Given the general principle of the right to a fair trial in international law, it is essential that the charge complies with procedural conditions of legality.18 By implication, if a person has not been formally charged, no trial19 is mandated. While the Convention is silent on the matter, fair trial principles in fact would exclude the possibility of a trial without a prior charge: unless a person has been charged, a trial is illegal. This does not mean, however, that Article VI only becomes applicable once a charge has been brought. In order to produce effects, it requires states to conduct investigations with a view to assessing whether a charge is to be brought. Such a duty to investigate arises whenever there is a reasonable suspicion that a crime in the sense of Articles II, III has been committed.20 Indictment is only the necessary precondition for a trial. 14

Infra, mns 54-9. See Article IV, mns 18–19. 16 Oxford Dictionary, 292 (‘charge’, para. 2, subpara. 3). 17 Oxford Dictionary, 890 (‘indictment’). 18 Sluiter, JIntCrimJust 8 (2010), 375. 19 See on the notion of ‘trial’ infra, mns 20-1. 20 As will be shown, at the international level, duties to cooperate with international criminal institutions do not depend on a formal charge either, see Sluiter, JIntCrimJust 8 (2010), 373–4; infra, mn. 62. 15

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Article VI 14–17 II. Explicit legal consequences 14 Article VI sets out explicit legal consequences for those charged with genocide, namely that the person in question ‘shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.’ For domestic prosecution under Article VI to be an option, states will have to have complied with Article V by enacting or amending domestic legislation to ensure the prosecution and punishment of perpetrators of genocide. In this respect, Article VI (just as Article IV) is a ‘litmus test’ for domestic implementation legislation on genocide. 15 As regards the explicit legal consequences imposed by Article VI, two aspects deserve closer examination. The first aspect is the duty to prosecute suspected perpetrators (as reflected by the words ‘shall be tried’). It will be shown that, similar to Article IV with regard to punishment, a general obligation to ensure trials of ge´nocidaires can be deduced from this.21 Second, Article VI specifies the territorial restrictions of mandatory jurisdiction. Crucially, the former, general, duty to ensure trials of ge´nocidaires is binding upon all states, and not just on the territorial state exercising mandatory jurisdiction. There is no nexus between territorial jurisdiction and the duty to cooperate towards a trial of perpetrators of genocide. As it is often overlooked, this aspect is usefully addressed at the outset. 1. A general duty to cooperate; no nexus Before analysing the wording of Article VI in detail, it is crucial to note that the duty of states to ensure that ge´nocidaires ‘shall be tried’ is a general one and not just binding upon the ‘the State in the territory of which the act was committed’. The two parts are separate and speak to different circles of addressees. ‘[S]hall be tried’ is formulated in the passive voice and thus impersonal. This is unlikely to have been written by accident – otherwise Article VI could have provided for (e. g.) ‘the State in the territory of which the act was committed shall try’ to ensure the prosecution of ge´nocidaires. This means that generally all state parties to the Convention are addressed.22 In other words: that at first sight23 every single member state is obliged to try a suspect. The subsequent words ‘by a competent tribunal…’ clarifies that for territorial states, this means a duty to actually conduct trials. However, there are other ways of ensuring that génocidaires ‘shall be tried’: other states, not themselves exercising mandatory territorial jurisdiction, can aid and assist in the preparation and conduct of the trial, they can extradite suspects, etc. This general duty to ensure the effective conduct of a trial is not dependent on a territorial nexus. 17 In fact, this is generally accepted for trials of ge´nocidaires before an ‘international penal tribunal’. Such international proceedings are obviously not mandated by the 16

21

Infra, mns 22 et seq. See also the broader analysis on the related expression ‘shall be punished’ in Article IV, mns 24–36. 23 As will be shown later, the specific content of the duty depends on the position of a particular state; but at least unconditional cooperation to promote a trial is generally required, see infra, mns 53-62. 22

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Convention, which cannot bind an international tribunal to exercise jurisdiction. Still, all state parties (once they have accepted jurisdiction24) are required to cooperate towards the conduct of proceedings. The general duty to cooperate (towards the trial of ge´nocidaires) is autonomous. It should similarly be construed for domestic criminal trials of ge´nocidaires before ‘a competent tribunal of the State in the territory of which the act was committed’. The same is borne out by a careful reading of the phrase ‘of the State in the 18 territory of which the act was committed’. Uniquely in the Convention, Article VI uses the word ‘state’ without further specification. Elsewhere in the Convention greater clarity is provided, for example states are either named, i. e. ‘Contracting Parties’ (e. g. in Articles V and VIII) or specifically referred to, i. e. ‘non-member states’ (e. g. in Article XI). This allows for a systematic deduction: The simple reference to ‘State’ in the sense of Article VI encompasses both members and nonmembers of the Convention. This seems to recognise that principally all states (including non-parties) are entitled to exercise jurisdiction over genocide.25 However, pursuant to the pacta tertiis principle, non-parties cannot be obliged by the Convention, even though their general right to jurisdiction is confirmed. Whilst non-member states may have a ‘competent tribunal’ with jurisdiction on genocide, the imperative ‘shall be tried’ is, for its binding character, restricted to state parties. 2. ‘shall be tried’ The main legal consequence a person being charged with having committed 19 genocide is that the person ‘shall be tried’ and that the trial has to be carried out ‘by’ a ‘tribunal’, which may be either national or international. Whilst Article IV imposes a duty on contracting parties to ensure punishment of perpetrators of genocide, the innovative aspect of Article VI lies in this explicit reference to the procedure through which punishment is to be determined; namely through trial in a competent tribunal. As such, Article VI is crucially important in elaborating on the legal apparatus established under the Convention for the conviction and prosecution of perpetrators of the crime of genocide. Before ascertaining the faces a duty to (prosecute and) try in more detail, the notions of trial and tribunal will be defined more precisely, since they are notionally linked to a duty to prosecute. a. Trial and tribunal A trial is literally ‘a formal examination of evidence by a judge, typically before 20 a jury, in order to decide guilt in a case of criminal or civil proceedings’.26 In the sense of Article VI a trial is exclusively a criminal procedure. Whilst no requirement of a trial by jury can be read from Article VI, the ordinary meaning of ‘tried’ implies that a judge must be in charge of proceedings. This is supported by the wording of the French (‘traduites’) and Spanish (‘juzgados’) versions of the Convention. The requirement of a judge excludes, for instance, purely administrative procedures or mere military orders to punish a suspect. The inherent right 24

See on acceptance of jurisdiction infra, mns 38-43. See on the relation between mandatory and optional jurisdiction infra, mns 45-52. 26 Oxford Dictionary, 1896 (‘trial’, para. 1). 25

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Article VI 20, 21 to a fair trial27 must be kept in mind as a rule of international (criminal) law28 pursuant to Article 31 para. 3 lit. (c) VCLT when considering a trial under Article VI.29 However beyond this baseline of protection, the Convention provides nothing further – contracting parties have discretion as to how to design and manage their municipal criminal proceedings. 21 The debate about Gacaca30 trials established in the wake of the 1994 Rwandan genocide illustrates the measure of discretion enjoyed by states.31 Faced with large 27 See on this e. g. Cassese/Gaeta et al., Cassese’s Int’l Criminal Law (3rd ed.), 347–62; DoswaldBeck, Fair Trial, in: MPEPIL, passim. 28 Doswald-Beck, Fair Trial, in: MPEPIL, mn. 16. 29 See Articles 8, 10 and 11 of the Universal Declaration of Human Rights. Among human rights treaties, the ICCPR of 1966 and its Article 14 represents this in the most globally covered and a comprehensive way, stating: ‘1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. 2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. 3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay; (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court; (g) Not to be compelled to testify against himself or to confess guilt. 4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation. 5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. 6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him. 7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.’ – See on the minimum requirements of a criminal trial Nowak, CCPR Commentary (2nd ed.), 329–57 (mns 42–100). 30 On this in general Bornkamm, Rwanda’s Gacaca Courts, passim; Henkel, Gacaca Courts, in: MPEPIL, passim; Schabas, JIntCrimJust 3 (2005), 879. 31 The subsequent debate focuses on Gacaca trials as a particularly prominent example of ‘unorthodox’ proceedings. Considerations set out in the text would equally apply to other forms of local justice.

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numbers of perpetrators, states – like Rwanda – have to balance fair trial demands with considerations of effectiveness. In this situation, and alongside international criminal trials before the ICTR and proceedings before foreign national courts,32 Gacaca trials were developed as the third ‘line’ of punishing perpetrators of genocide. The term Gacaca is derived from Kinyarwanda language and means ‘grass’ or ‘lawn’.33 This might already indicate Gacaca’s origin in the traditional open-air dispute settlement system of local tribes. Modern Gacaca procedures are based on a Rwandan organic law but are still held on village grasslands in public within a local community.34 Proceedings before the over 12,000 courts35 are guided by trained and independent Gacaca judges, but involve local lay people who can influence judges and the accused. As detailed studies have established,36 Gacaca trials do not meet all requirements of a fair trial as reflected in, e. g., Article 14 ICCPR.37 However, the core elements of due process are present, viz. independent judges,38 separation between prosecution and procedure,39 and even the possibility of appealing decisions.40 The benefits of such a traditional system are considerable. The system is widely accepted; as it is fast, detention time is reduced; and it is capable to deal with a large number of (alleged) perpetrators. Even though Gacaca does not fully comply with Article 14 ICCPR, the Rwandan society considers it to be a fair – and legitimate – way of dealing with past atrocities.41 Based on a law and recognised in the Rwandan constitution, Gacaca trials are fully in line with domestic law. In the light of these considerations, Gacaca – and eventually in future related – trials should be taken to comply with the requirements of a ‘trial by tribunal’ set out in Article VI. b. General obligation to ensure trials of genocide (‘shall’) While the reference to ‘court’ and ‘tribunal’ is designed to ensure due process, 22 Article VI otherwise formulates an abstract duty to ensure trials of genocide: persons charged with genocide ‘shall’ be tried. This is a strict duty, which leaves contracting parties no discretion – where a charge has been made, a trial must necessarily follow. Crucially, all state parties irrespective of jurisdiction must ensure that charged 23 suspects are brought to trial. This emanates from the abstract formulation of Article VI. The parallel grammatical construction of ‘shall be tried’ (Article VI) and ‘shall be punished’ (Article IV), which is exactly the same in any authoritative language version of the Convention, is obvious. Thus, in respect of ‘shall be’, the same considerations as in Article IV42 apply to Article VI. This means that no state party 32

See Schabas, JIntCrimJust 3 (2005), 886–90. Schabas, Genocide in Int’l Law (2nd ed.), 418. 34 Bornkamm, Rwanda’s Gacaca Courts, 35–48; Henkel, Gacaca Courts, in: MPEPIL, mns 8–13; Schabas, Genocide in Int’l Law (2nd ed.), 418–9. 35 Bornkamm, Rwanda’s Gacaca Courts, 26. 36 Bornkamm, Rwanda’s Gacaca Courts, 103–18. 37 Bornkamm, Rwanda’s Gacaca Courts, 117–8. 38 Bornkamm, Rwanda’s Gacaca Courts, 37–8. 39 Henkel, Gacaca Courts, in: MPEPIL, mn. 14. 40 Bornkamm, Rwanda’s Gacaca Courts, 70–5. 41 According to a survey of 2010, Gacaca was supported by 74.4 % of the population, Bornkamm, Rwanda’s Gacaca Courts, 117 (and there fn. 155). 42 Article IV, mns 28–32. 33

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Article VI 23–25 is relieved from complying with Article VI, irrespective as to whether it is obliged to exercise jurisdiction or not. What is more, as seen above, the competence of tribunals is not necessarily congruent with the stipulation that suspects ‘shall be tried’.43 The specific content of the duty to ensure the trial of suspected ge´nocidaires is only partly expressed in Article VI, namely insofar territorial states are required to exercise jurisdiction.44 Otherwise, the duties of states on whose territory genocide was not committed follow by implication, and are addressed further below, alongside other implied legal consequences of Article VI.45 What can be said at the outset is that the general obligation to ensure trials of genocide must not be undermined by general procedural obstacles, such as immunity. As noted in the commentary to Article IV, immunity does not shield perpetrators from punishment;46 by the same token, under Article VI, immunity, as interpreted in the light of the Convention, is not a ground to prevent state parties from performing their duties to ensure the trial of suspected perpetrators. c. Qualified obligation to perform a trial (‘by’) The second part of Article VI clarifies which state parties47 are under a strict duty to bring charges and try perpetrators of genocide. Member states whose courts are competent in a specific case pursuant to Article VI must charge and try suspects of genocide. This is indicated by the preposition ‘by’, which connects the general obligation to ensure trials of genocide with the specific, qualified, obligation to exercise jurisdiction (‘shall be tried by a competent tribunal of the state…’). In this context, the abstract and passive formulation ‘shall be tried’ is concretised by the reference to the competent tribunal in the territorial state, which is actively entitled to jurisdiction; this state is under a duty to exercise jurisdiction. However, as clarified above,48 all this is only true as long as a tribunal of a state party is concerned; third states’ or international tribunals cannot be bound by this construction. 25 Crucially, it is possible that Article VI, in certain cases, imposes explicit (and thus mandatory) jurisdiction to more than one state party.49 Nevertheless, in light of the ne bis in idem principle, at least with respect to the same facts and crimes, often only one state will be able to comply with the duty to conduct a trial. The wording of Article VI considers such diversity of jurisdiction since it says ‘by a competent tribunal’ (and not by the competent tribunal’), the same is true of the Spanish version (‘por un tribunal’); the French version provides a similar reading but makes use of the definite plural form: ‘devant les tribunaux compe´tents’. Thus, there is no hierarchy of competent tribunals, which in turn means there is no priority of any competent forum. However, it may be assumed that it is the state where genocide has been committed that is prima facie addressed.50 However, this presumption 24

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Supra, mns 16-8. See infra, mn. 29. 45 Infra, mns 53-62. 46 See Article IV, mns 45–62. 47 See on the issue of state party and Article VI infra, mn. 28. 48 Supra, mn. 18. 49 E.g. if the genocidal act was committed in more than one member state, see further infra, mns 29-31. 50 This is referred to by Werle, Int’l Criminal Law (2nd ed.), mn. 194. 44

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does not exclude the possibility of multiple claims to jurisdiction.51 Therefore, where a single state has jurisdiction an unconditional duty to perform a trial is effective; but where multiple states have jurisdictional claims they must agree on which state or institution brings a charge. Where such an agreement cannot be found, as a last resort, the competent forum state with the best access to the suspect is obliged to indict him or her. As the general obligation to ensure trials of genocide cannot be undermined, this supplementary obligation is the ultima ratio to effectively comply with the object and purpose of the Convention.52 3. ‘competent tribunal of the State in the territory of which the act was committed’ (alternative 1) Regarding national jurisdiction ratione loci, the Genocide Convention takes only 26 such tribunals that are considered generally ‘competent’ into account; and particularly those situated in the state ‘where the act was committed’. This prima facie limiting formulation requires further explanation and raises several matters worthy of closer inspection. The first of which is the issue of competence in general. Second, clarification is necessary with regards to whom Article VI refers to, i. e. which states are being addressed: only parties or also third states? A third question relates to the local aspect of where ‘the act was committed’. In other words, what features constitute local jurisdiction? The final matter to which attention should be drawn is whether the jurisdiction stipulated by Article VI is exclusive, i. e. barring prosecution by all other states. But since this last aspect is connected with the implied consequences of Article VI, it shall be addressed in the specific section covering that area within this commentary.53 a. Competence in general In general, states have jurisdiction subject to the requirement that the tribunal is 27 a ‘competent’ one. In addition to the general requirements of a tribunal,54 national law must determine which courts are competent to address genocide charges. In this, states are largely free. However, as part of the general duty to implement the Convention effectively,55 states must ensure that the competent courts are in a position to impose upon perpetrators of genocide ‘effective penalties’. Because of the gravity of the crime, courts must also be capable of delivering the full range of sanctions available under the national criminal law. b. Article VI and non-member states Article VI is, as seen above,56 the only provision addressing literally every state in 28 the world, including non-members. As a treaty, the Convention cannot impose obligations upon non-members; however, the universal reach of Article VI may have repercussions for member states themselves. Their duty to facilitate the 51 E.g. the nationality of a ge ´nocidaire, genocide on different national territories or a competence of the ICC could constitute several fora for one specific case; see further infra, mns 45 et seq. 52 Infra, mn. 58. 53 Infra, mns 45 et seq. 54 Supra, mns 20-1. 55 See Article V, mns 27–34. 56 Supra, mn. 18.

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Article VI 28–31 prosecution of perpetrators can require cooperation with non-member states (just as it requires cooperation with international tribunals outside the reach of the Convention). If third states claim their right to prosecute and if they have jurisdiction in accordance with Article VI, member states are also obliged to cooperate and in particular to extradite57 suspects to the third state, as long as the latter complies in the specific case with the other provisions of the Genocide Convention.58 c. Location where ‘the act was committed’ The necessary factor for the triggering of mandatory national jurisdiction is the place where ‘the act was committed’. The Genocide Convention does not consider the principles of active or passive personality (i. e. the nationality of perpetrators and victims); instead it is restricted to the territorial aspects of the commission. Indeed, the key word in this context is ‘committed’ (as well as its equivalents in the other authoritative language versions); the focus thus lies on the performance of an act and not its subsequent effect. Hence, in terms of jurisdiction, it is not necessarily relevant where a genocide finally took place but on whose territory59 the perpetrators acted.60 30 Nevertheless, directly affected states will practically always have jurisdiction over genocide, which occurs on their territory. With regard to genocide it is hardly to imagine that not even one act of commission would have taken place on the territory of the directly affected state.61 The most prominent example of this is Rwanda which established widespread jurisdiction to bring hundreds of thousands participants of the 1994 genocide to court.62 31 Beyond all that, any other place of action constitutes alternative jurisdiction ratione loci. Wherever at least one element of the actus reus of genocide pursuant to Articles II and III has been carried out, the act is additionally ‘committed’ in the sense of Article VI. This literal interpretation finds some support in the object and purpose of effectively punishing ge´nocidaires. In factual terms it is usually so-called 29

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See on this obligation in general infra, mns 60-2. See with regard to state party cooperation also Article IV, mns 30–2. 59 Problems arise with respect to genocide on a territory of a state that afterwards ceased to exist. It might be argued that local jurisdiction for those cases transfers to each and every successor state because Article VI is explicit regarding the link between the territory in which ‘the act was committed’ and the resulting jurisdiction. The territorial link is not disrupted by subsequent changes to the state’s personality: as Article VI refers expressly to the state and not, e. g., the geographical coordinates where the act was committed, jurisdiction devolve to every successor state having (retroactively, see Article XI, mns 19–27, and also Article XIII) acceded to the Convention. If a continuator state still exists, however, the situation is different: A continuator takes over exclusively all rights and duties from the predecessor state; see on this topic (but irrespective of Article VI) Milanovic´, in: Gaeta, Genocide Convention, 484–7. For instance, in the Bosnian Genocide case (ICJ Reports 2007, 226–7, para. 442), Serbia was not required to prosecute perpetrators of genocide committed in Srebrenica, i. e. on Bosnian territory. However, if genocide had occurred before the dismemberment of Yugoslavia, the situation could have been different. 60 Robinson, Genocide Convention, 83, already recognised this distinction and admitted that ‘it is not simple to establish the actual place of commission’. For the immediate perpetrators, this will typically be ‘on site’; but it need not be so: incitement and conspiracy can take place in far-away places, and killings can be committed by weapons with long-range effects. In these scenarios, the commission of the act is relevant for ascertaining territorial jurisdiction. 61 Even if so, it is suggested that the place where ‘the act was committed’ would functionally and teleologically be interpreted to include also the directly affected state. 62 See further on this Schabas, JIntCrimJust 1 (2003), 45–53. 58

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henchmen who perform the final acts of genocide e. g. killing in the frontline. However, the leaders and coordinators of such actions may orchestrate operations from a foreign territory.63 Perpetrators acting from the territory of states not directly affected by genocide can be captured and charged most effectively within those states.64 4. ‘such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction’ (alternative 2) Unlike explicit national jurisdiction, international courts pursuant to Article VI 32 are not subject to territorial restrictions. The only requirement is that member states have accepted the jurisdiction of the relevant judicial body. This international alternative had long been merely theoretical in nature. However, with the establishment of the ICTY in 1993 and the ICTR in 1995 (nearly half a century after the adoption of the Genocide Convention) this part of Article VI has begun to wake from its long sleep – although the drafters’ vision was somewhat different. In the Convention’s early years it appeared to be at least not unrealistic that international criminal justice could be concentrated in a generally accepted international criminal body. Some promising antecedent plans like the first draft of such a court in 1937 by the League of Nations, the draft of a UN War Crimes Court 1944, or the Tribunal for Genocide draft seemed to promise to deliver on the ideal.65 Indeed, alongside the adoption of the Genocide Convention – by the very same Resolution 260 (III), section B – the GA invited the ILC to ‘study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide or other crimes over which jurisdiction will be conferred upon that organ by international conventions’.66 Despite this, decades of back office and diplomacy efforts passed by without a practical result.67 In fact it was not until 1998 that the Rome Conference and the birth of the ICC reflected seriously the initial idea of the Convention. Positively speaking, this development could be seen as evidence of the Convention’s robust health and increasingly meaningful position in international criminal law. Irrespective of this development, it needs to be assessed by interpretation which 33 requirements an international criminal body has to fulfil to be considered as an ‘international penal tribunal’ in the sense of the Convention. The other important issue is that of acceptance of jurisdiction. It is therefore these criteria in relation to the existent international criminal courts that will now be examined. 63 This is a characteristic of international crimes in general, as can be seen in the growing national jurisprudence on such crimes, e. g. recently in the ongoing case against members of the so called ‘Democratic Forces for the Liberation of Rwanda’ who are accused of having managed international crimes in Rwanda and Congo from their German homes, Oberlandesgericht Stuttgart, ‘FDLR’, file number 5–3 StE 6/10, see also press release of 4 March 2011, http://www.olgstuttgart.de/servlet/PB/menu/1266093/index.html. 64 Procedurally it would cause undue delay and also risk of a breach of the rights of the suspect to extradite him or her to the victim state. Article VI takes all this into account by linking local jurisdiction with any performance of at least one element of the actus reus. 65 Schabas, Death Penalty, 241–2 (further references there in fns 38–40). 66 Anonymous author(s), YaleLJ 58 (1948–1949), 1149–50. 67 Further details in the ILC protocols, http://untreaty.un.org/ilc/summaries/7_2.htm.

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Article VI 34, 35 a. International penal tribunal The first question relates to what is meant by ‘international penal tribunal’. The ordinary meaning of tribunal has already been defined.68 The qualification of ‘penal’ is the equivalent to ‘criminal’ and clarifies that the international court has to deal with (at least inter alia) criminal law issues and to provide for specifically criminal proceedings. The ICC is the most obvious example. By contrast, the ICJ cannot be qualified as an international penal tribunal; ICJ proceedings are inter-state cases that do not involve questions of criminal responsibility, but ‘[d]isputes between the Contracting Parties relating to the interpretation, application or fulfillment 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’.69 35 When it comes to defining what is meant by ‘international’, things are less clear. First and foremost hybrid tribunals70 like71 the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, or the Special Tribunal for Lebanon feature national elements and might therefore not qualify as international. Although hybrid tribunals have a unique design, they are at least partly relevant for genocide.72 As to their operative features, there are generally some similarities:73 They are typically instituted upon agreement or (in the case of the STL74) by resolution of an international organ with cooperation of a state. The underlying provisions have their sources in both international and national criminal law. Hybrid tribunals are composed of international and national judges. In short, they are in every aspect partly international. Thus, the decisive question is whether ‘international’ in the sense of Article VI covers exclusively international courts or also courts with important international elements like hybrid tribunals. The ordinary meaning of the word ‘international’ is ‘existing, occurring, or carried on between nations’.75 Such an understanding would also include partly international courts as a nexus ‘between nations’. Moreover, when taking into account that national and international courts are encompassed by Article VI excluding hybrid bodies would create a lacuna between the two alternatives, which could not be justified. Given all of this it appears right to classify hybrid tribunals also as international tribunals.76 In sum, the feature ‘international’ is fulfilled whenever the interaction between nations is more than minimal. The SCSL, having had to 34

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Supra, mns 20-1. See Article IX. 70 On this issue in general e. g. Mackenzie/Romano/Shany, Int’l Courts and Tribunals, 212–47; Williams, Hybrid and Internationalised Criminal Tribunals, passim. 71 Another hybrid tribunal were the Serious Crimes Panels in the District Court of Dili (TimorLeste) which ceased to operate in 2005; the hybrid Panels in the Courts of Kosovo and the War Crimes Chamber of the Court of Bosnia-Herzegovina are rather national courts in the respective states, see further Mackenzie/Romano/Shany, Int’l Courts and Tribunals, 213–4. 72 Zappala `, in: Gaeta, Genocide Convention, 272–4. 73 Unlike this superficial overview a precise analysis is given by Williams, Hybrid and Internationalised Criminal Tribunals, 187–252. 74 UN Doc. S/RES/1757 (2007). 75 Oxford Dictionary, 913 (‘international’). 76 Schabas, Genocide in Int’l Law (2nd ed.), 454, apodictically pleads for the opposite. Zappala `, in: Gaeta, Genocide Convention, 274, seems to be neutral on this issue. 69

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discuss its status as an international tribunal (though not with respect to Article VI), came to the same conclusion.77 Beyond that it is interesting as to what matters Article VI is silent on. Firstly, 36 Article VI makes no reference to the temporal nature of international tribunals. There is no demand for a permanent court. E contrario, the ICTY and the ICTR as ad hoc tribunals, despite their divergence from the original idea,78 fit well under Article VI. Their non-permanence is not considered by this provision and thus these two tribunals are not excluded from its scope of application. The ICJ confirmed as much in its Bosnian Genocide case and held the respondent responsible for having breached its duty to punish ge´nocidaires because it had failed to cooperate with the ICTY.79 The second matter as to which Article VI is silent is plurality. The ICC nowadays 37 coincides best with the drafters’ idea of an international penal tribunal. Nevertheless, its existence and operation does not displace other international tribunals from the scope of Article VI. This is because this provision is not restricted to one single international tribunal. And though Article VI does refer to the ‘international penal tribunal’ in the singular form (as do the other language versions) this may have more to do with the reference to the subsequent acceptance clause. A plural use could have been understood as offering a bunch of tribunals, which would have jurisdiction only after a general acceptance by member states. This would be quite an unrealistic scenario. Instead, acceptance is required separately for each individual tribunal. Besides, restricting Article VI to a single tribunal (i. e. the ICC) would unduly limit the effective punishment of genocide. Indeed, practice clearly demonstrates that the international community, as well as the ICJ,80 has broadly accepted a plurality of international criminal jurisdiction. This, of course, is also relevant to the interpretation of Article VI. b. Acceptance of jurisdiction Once a tribunal is determined to be international, its jurisdiction on genocide 38 depends on its acceptance by the pertinent states. As indicated by the wording ‘shall have accepted’, Article VI (unlike Article IX vis-a`-vis the ICJ) cannot be understood as an automatic declaration of acceptance of an (undefined) international penal court.81 Instead, further state action is necessary. State parties can accept such international tribunal directly or indirectly. Direct acceptance usually takes the form of an express and binding declaration of a state, typically by virtue of a treaty. The relevant and most important treaty in this respect is the ICC Statute. The establishment of the ICC and in particular the acts of those states which have become party to its Statute (thereby accepting the jurisdiction of the ICC in relation to specific crimes) conforms to the initial idea of Article VI regarding the acceptance of such interna-

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SCSL Taylor (Immunity), 31 May 2004, 18–21 (paras 37–42); Frulli, JIntCrimJust 2 (2004), 1122. Zappala`, in: Gaeta, Genocide Convention, 268–70. 79 ‘The notion of an ‘international penal tribunal’ within the meaning of Article VI must at least cover all international criminal courts created after the adoption of the Convention (at which date no such court existed) of potentially universal scope’, Bosnian Genocide case, ICJ Reports 2007, 227 (para. 445). 80 See the ICJ’s statement supra, fn. 79. 81 Anonymous author(s), YaleLJ 58 (1948–1949), 1155. 78

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Article VI 38–41 tional criminal jurisdiction.82 In this respect it does not appear audacious to identify the ICC, especially in the relationship between it and its member states, as coming closest to the prototype of an international penal tribunal in the sense of Article VI. 39 As to direct acceptance, it is important to identify to which factor, in terms of Article VI, accepting international criminal jurisdiction is linked. One could think of two different linking factors: nationality of the alleged perpetrator or existing domestic jurisdiction. In other words, state parties could either accept that their nationals should be subject to international jurisdiction on genocide, or they could share83 their right to exercise (national) jurisdiction with an international tribunal. Article VI opts for the latter approach, stipulating that international jurisdiction is accepted ‘with respect to those Contracting Parties’ (and not ‘with respect to nationals of those contracting parties’). Thus, whenever a state party has (directly) accepted an international criminal tribunal’s jurisdiction, Article VI alleges that the latter is based on domestic jurisdiction (which is mandatory if based on territoriality, but may also exist beyond the wording of Article VI84). 40 This deduction is crucial with regard to cooperation duties85 of state parties not having accepted international jurisdiction. Irrespective of their acceptance of a particular international penal tribunal, state parties to the Genocide Convention must ensure trials of genocide by cooperating with other state parties to the Convention exercising domestic jurisdiction. If other treaty parties have agreed to share their jurisdiction with an international criminal tribunal, any other state must support this tribunal as if it was a national one. Even those states not having accepted international jurisdiction are obliged to cooperate with the international tribunal in the same manner as with the state party whose national jurisdiction international jurisdiction in the pertinent case is derived from.86 This is especially important when a member state of the Convention is not party to the ICC but another state party to both treaties has jurisdiction. The former is obliged to fully cooperate with the latter but, crucially, also with the ICC. 41 Another area of international criminal jurisdiction that must be considered is that of SC resolutions under Chapter VII of the UN Charter referring particular matters to an international penal tribunal. Whenever the Security Council acts, particularly when using its ‘sharpest sword’, it represents the entire UN membership, which has already accepted any SC decision by virtue of Article 25 of the UN Charter.87 This was confirmed by the ICJ as early as 1971 in its Namibia opinion.88 Thus, SC resolutions on international jurisdiction are equal to acceptance in casu. For states not party to the ICC, such acceptance is regarded to be given indirectly, 82

In particular see Article 12 of the ICC Statute. It would then depend in the specific declaration of acceptance to assess whether national or international jurisdiction should prevail; the ICC realised this by virtue of complementarity. 84 See on the right to jurisdiction on genocide infra, mns 45-52. 85 Infra, mns 53-62. 86 This duty stems from the general obligation to cooperate between state parties; but it does not constitute an ‘indirect acceptance’ of the ICC by states not party to it. 87 Sluiter, JIntCrimJust 8 (2010), 371–2. 88 ICJ Reports 1971, 54 (para. 116, last subpara.): ‘Thus when the Security Council adopts a decision under Article 25 in accordance with the Charter, it is for member States to comply with that decision, including those members of the Security Council which voted against it and those Members of the United Nations who are not members of the Council. To hold otherwise would be to deprive this principal organ of its essential functions and powers under the Charter.’ 83

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i. e. through the SC. As far as ICC referrals by the Security Council are concerned, it becomes irrelevant whether individual states are party to the ICC or have otherwise accepted its jurisdiction. Indeed, the ICC Statute itself provides in Article 13 lit. (b) for SC referrals89 – thereby rendering the need for individual state acceptance obsolete. In fact this subject was addressed in the arrest warrant decisions of the ICC against the Sudanese President Al Bashir, which had been initiated by a SC referral.90 The Pre-Trial Chamber ruled: ‘… insofar as the Darfur situation has been referred to the Court by the Security Council, acting pursuant to article 13(b) of the Statute, the present case falls within the jurisdiction of the Court despite the fact that it refers to the alleged criminal liability of a national of a State that is not party to the Statute …’.91

The same theory of indirect acceptance is applicable to international jurisdiction 42 of the ad hoc criminal tribunals such as the ICTY and the ICTR. As they were implemented by SC resolutions92 under Chapter VII of the UN Charter, their jurisdiction reflects the acceptance, of a particular international penal tribunal, by the international community.93 As regards the ICTY, Serbia, by ratifying the Dayton Agreement of 30 November 1995,94 explicitly accepted the jurisdiction of the ICTY through Article X of the Agreement’s annex 1-A (but this is supplementary rather than essential acceptance, which nevertheless has the effect of strengthening the ICTY’s competence).95 However, it should be underlined that the aforementioned tribunals enjoy a special (viz. Chapter VII) status. Tribunals not established on the basis of Chapter VII are not automatically accepted in the sense of Article VI. The same applies to hybrid tribunals. So far, all of the operating hybrid courts 43 have been established either by treaty or by SC resolution; both are sufficient basis to assume acceptance and future hybrid criminal tribunals will have to be measured by these criteria. 5. Interrelation between both alternatives, sub specie the principle of complementarity As is indicated by the word ‘or’, there is no hierarchy between national and 44 international criminal jurisdiction; the two alternatives are equally valid from the Convention’s point of view. That said, as regards the ICC, the interrelation is determined by the principle of complementarity, as set out in Article 17 of the ICC Statute.96 Whenever member states are also state parties to the ICC, its Statute has to be regarded as subsequent treaty practice to the Convention. This means that as a general matter (i. e. unless national courts are unable or unwilling to act), national jurisdiction will take precedence over international jurisdiction.

89

Schabas/Schabas, in: Triffterer, ICC Statute (2nd ed.), Article 13, mn. 16. UN Doc. S/RES/1593 (2005). 91 ICC Al Bashir, PTC, 4 March 2009, 14 (para. 40). 92 ICTY: UN Doc. S/RES/827 (1993); ICTR: UN Doc. S/RES/955 (1994). 93 Zappala `, in: Gaeta, Genocide Convention, 267–8. 94 UN Doc. A/50/790. 95 However, in the Bosnian Genocide case, ICJ Reports 2007, 228 (para. 447), the ICJ seemed to rely on the Dayton Agreement as the primary source of Serbia’s acceptance of the ICTY. But would, on that logic, other states have ‘accepted’ the ICTY (and also the ICTR) for the purposes of Article VI? 96 See in general Kleffner, Complementarity, passim; Lafleur, Komplementarita ¨t, passim. 90

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Article VI 45–48

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III. Implied legal consequences 1. Jurisdiction beyond the alternatives of Article VI Article VI does not state explicitly whether the jurisdiction of domestic courts can only be based on a territorial link, or whether other jurisdictional bases can be invoked. As is clear from its terms, it certainly does not provide express support for the concept of universal jurisdiction.97 Rather, the more striking question here is whether Article VI, as a treaty-based barrier, by implication precludes the exercise of extra-territorial jurisdiction.98 The combination of the words ‘shall’, ‘by’ and ‘or’ could be understood in such manner: a trial is obligatory, but only in the two alternatives mentioned. This seems indeed to point towards exclusivity, but the matter is not conclusively settled – as e. g. the addition of the word ‘only’ might have done. (By contrast, neither does Article VI use terms like ‘inter alia’ which would have clarified that the two modalities were illustrative.) In short, the wording of Article VI – also in its other language versions – hint at exclusivity, without settling matters. In turning to the travaux there is no clear intention from the drafters to create a restriction; indeed, the majority held a view quite to the contrary.99 Nevertheless, as is clear from Article 32 VCLT and its customary law equivalent, reference to historical materials is merely a supplementary means of interpretation, which can only be adhered to when primary means of interpretation fail to deliver a clear result.100 Such a clear result, however, can be deduced through systematic and teleological interpretation as well as through subsequent practice pursuant to Article 31 para. 3 lit. (b) VCLT. An absolute restriction of jurisdiction would, at the very least, contravene the performance of Article IV, which obligates every state party to contribute to the punishment of ge´nocidaires.101 If Article VI precluded other states from exercising extraterritorial jurisdiction, territorial states that were unable or unwilling to prosecute could effectively undermine the punishment of genocide. This would create a lacuna, which could not be filled by domestic trials in other member states. This could not be brought in line with the absolute requirement of punishment in Article IV. Admittedly, it would be still possible for the ICC to step up and invoke its jurisdiction pursuant to the second alternative of Article VI. The ICC, however, is designed to prosecute and try leaders of international crimes and not the henchmen. Excessive transferral of frontline perpetrators to The Hague would paralyse the ICC by overloading its capacities. The principle of complementarity as a way of ‘burden sharing’102 between the ICC and its member states could be strained by a strictly narrow interpretation of Article VI. At the extreme, this could lead to a 97 See on such a principle infra, mn. 52. As stated above, the universality principle will not be dealt with in any depth here, as it raises more general questions of international (criminal) law. 98 Not considered by McCullough, IrishSLR 9 (2001), 97–8; but see, e. g., Ben-Naftali/Sharon, JIntCrimJust 5 (2007), 859; Fournet, IntCrimJustRev 19 (2009), 143–4; Kreicker, IntCrimLRev 5 (2005), 317–9; Lippman, HousJIL 23 (2000–2001), 480; Robinson, Genocide Convention, 84; Starkman, ASILSILJ 8 (1984), 46–7; Steven, VirginiaJIL 39 (1998–9), 439–40, 455–9. 99 Supra, mn. 6. 100 See particularly on the Genocide Convention also Ben-Naftali/Sharon, JIntCrimJust 5 (2007), 865. 101 See Article IV, mns 28–32. 102 Schabas/Schabas, in: Triffterer, ICC Statute (2nd ed.), Article 17, mn. 22.

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situation where genocide (and any other international crime) would be prosecuted on an inconsistent basis. Such a development would clearly violate the object and purpose of the Convention. Moreover, a restrictive reading of Article VI would contravene the object and 49 purpose of the Convention. If Article VI really precluded treaty parties other than the territorial state from exercising domestic jurisdiction, third states not bound to Article VI might step in. As a net result, the ICC might be relieved, but, Article VI would also indirectly facilitate the punishment of ge´nocidaires by third states – whereas the Convention’s goal is to ensure punishment by treaty parties, and according to common standards, would be thwarted.103 In any case, subsequent – and in particular more recent – practice supports the 50 open interpretation of Article VI.104 The atrocities in former Yugoslavia and Rwanda certainly promoted such development. There is a growing number of national genocide trials conducted irrespective of any territorial link to the perpetrators’ actions. The most prominent historical example is the Israeli Eichmann case.105 In the late shadow of this flagship case, domestic courts in a range of member states have asserted domestic jurisdiction over genocide committed elsewhere, including in Austria,106 Belgium,107 Canada,108 Germany,109 the Netherlands,110 Spain,111 Switzerland112 and the United Kingdom.113 National legislation on jurisdiction has been adjusted so as to permit for extra-territorial jurisdiction over genocide, e. g. in the German Vo¨lkerstrafgesetzbuch,114 the Dutch Wet Internationale Misdrijven,115 and also municipal criminal law provisions in Austria, Belgium, Canada, France, Spain and Switzerland.116 The particular states mentioned did not seem to be perturbed by Article VI; rather, they offer evidence of a subsequent practice, which goes against a restrictive interpretation of Article VI. The ICJ offers support for this view in its Bosnian Genocide case: 51 ‘[Article VI] certainly does not prohibit States, with respect to genocide, from conferring jurisdiction on their criminal courts based on criteria other than where the crime was committed which are compatible with international law, in particular the nationality of the accused, …’117 103 See also Ben-Naftali/Sharon, JIntCrimJust 5 (2007), 869, characterising such a result as ‘manifestly absurd’. 104 On this in general Wouters/Verhoeven, Domestic Prosecution of Genocide, 27–36. 105 On the particular issue of local jurisdiction Lippman, HousJIL 23 (2000–2001), 492–5; Schabas, Genocide in Int’l Law (2nd ed.), 426–9; Starkman, ASILSILJ 8 (1984), 50 (and there fn. 234); Thalmann, in: Gaeta, Genocide Convention, 247–8. 106 Thalmann, in: Gaeta, Genocide Convention, 248. 107 Wouters/Verhoeven, Domestic Prosecution of Genocide, 29–30. 108 Thalmann, in: Gaeta, Genocide Convention, 252. 109 Fournet, IntCrimJustRev 19 (2009), 143; Rissing-van Saan, JIntCrimJust 3 (2005), 381 and particularly 385, 398–9. 110 Wouters/Verhoeven, Domestic Prosecution of Genocide, 29; jurisdiction was further assumed without doubt in the Dutch van Anraat case, see further van der Wilt, JIntCrimJust 4 (2006), 239; van der Wilt, JIntCrimJust 6 (2008), 557. 111 Thalmann, in: Gaeta, Genocide Convention, 251–2. 112 Thalmann, in: Gaeta, Genocide Convention, 250. 113 Wouters/Verhoeven, Domestic Prosecution of Genocide, 30. 114 § 1, applied procedurally in connection with § 153f of the Strafprozessordnung (German Criminal Procedural Code); see e. g. Thalmann, in: Gaeta, Genocide Convention, 244. 115 Article 2 lit. (a), see Wouters/Verhoeven, Domestic Prosecution of Genocide, 33. 116 Thalmann, in: Gaeta, Genocide Convention, 244–6. 117 ICJ Reports 2007, 227 (para. 442, last sentence).

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Article VI 51–54 Notwithstanding any possibly extant further obligations, the ICJ did not doubt that the wording of Article VI does not exclude further jurisdiction as a right of every state. This statement shows, in particular, that Article VI requires separate interpretation regarding obligations and rights. The word ‘shall’ creates obligations for the jurisdictional issues Article VI addresses explicitly. But such obligations are indeed not restrictions but rather leave room for any right of states under general international law. Not least among those rights are those derived from state sovereignty which permits states to prosecute and try any person for crimes under international law. 52 These considerations as well as the ICJ’s statement in the Genocide case suggest that for genocide trials jurisdiction beyond territoriality, if not even universal jurisdiction,118 is now part of customary international law. Likewise, the Institut du Droit International in its 2005 Krakow Resolution put forward the issue of universal jurisdiction in its appraisal of the current status of international law.119 This subsequent development to Article VI is another indicator which points towards the provision’s broad character beyond the obligatory jurisdiction prompted by its wording. 2. Obligations for state parties irrespective of own jurisdiction 53

Besides the right to execute jurisdiction beyond the explicit alternatives stated in Article VI, the provision – read in its broader context with Articles IV and V – imposes further obligations on state parties. The Genocide Convention does not mention such obligations expressly. Nevertheless, they are written between the lines of Articles IV, V and VI and emanate from the object and purpose of the Convention as formulated in its Article I.120 The key expressions which disclose such further duties are the requirements that ge´nocidaires ‘shall be punished’ (Article IV) and that suspects ‘shall be tried’ (as discussed above in this chapter). These duties to ensure punishment and trials stand in a reciprocal relationship but indeed cover different scopes. This rather sophisticated interrelation conveys different aspects of these two duties, including the principle of aut dedere aut judicare, which can be classified as further implied consequences of Article VI (read together with Article IV). a. Duty to punish and duty to prosecute: distinction and scope

54

It is essential to distinguish between the duty to ensure punishment of ge´nocidaires according to Article IV and the duty to charge and try (hereinafter 118 See in general inter alia Cassese, EJIL 13 (2002), 859–62; Degan, Responsibility of States and Individuals, in: Festschrift Hafner, 517–20; Kourula, Universal Jurisdiction, in: Sovereignty and Int’l Criminal Law; Kreß, JIntCrimJust 4 (2006), 569–76 (including further references); Lijiang, Universal Jurisdiction, in: Sovereignty and Int’l Criminal Law, 191; Schabas, Genocide in Int’l Law (2nd ed.), 429–43. 119 Resolution on Universal criminal jurisdiction with regard to the crime of genocide, crimes against humanity and war crimes, http://www.idi-iil.org/idiE/resolutionsE/2005_kra_03_en.pdf, para. 2: ‘Universal jurisdiction is primarily based on customary international law. …’, para. 3 lit. (a): ‘Universal jurisdiction may be exercised over international crimes identified by international law as falling within that jurisdiction in matters such as genocide, …’; see on this resolution Kreß, JIntCrimJust 4 (2006), 561. 120 Ben-Naftali/Sharon, JIntCrimJust 5 (2007), 867.

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summarised simply as ‘prosecute’) suspects according to Article VI.121 The performance of both duties is abstract (i. e. without further reference to a specific state) as indicated by the identical command ‘shall be’ in both provisions. This said, punishment as well as prosecution are general requirements, their fulfilment must be ensured by all state parties – but need not necessarily be executed by each of them. Neither Article IV nor Article VI call upon member states to punish and prosecute directly. Instead the demand for punishment and prosecution is more an abstract or general one.122 The mode of Articles IV and VI stands in clear contrast to that of Article V: therein, the ‘Contracting Parties’ are addressed explicitly. Thus, the latter provision imposes on member states a duty to perform (legislation), whereas the former two prompt duties to ensure performance. Such warranties can be safeguarded either by individual implementation (i. e. prosecution and if applicable punishment) by each member state; or by promoting third party implementation (i. e. support for prosecution by another member state or a third party). As long as the mandatory aim – prosecution and punishment – is achieved, member states prima facie have discretion as to how they realise their duties. However, this discretion is restricted in various ways. A first restriction flows from Article V. As soon as member states have enacted 55 the necessary legislation on genocide, they are obliged to prosecute and punish genocide pursuant to their own national law. Thus, secunda facie, the duty to guarantee prosecution and punishment distils into a duty to actually prosecute and (if the accused is convicted) punish according to national law. The reach of this restriction is limited, though, as it only goes as far as the mandatory duty to prosecute imposed by Article VI. A further restriction can be derived from Article VI if the provision is construed 56 in the light of Article IV’s duty to punish in particular. As shown elsewhere, the duty to punish imposed by that provision is absolute.123 Read properly, its absolute scope is not affected by Article VI either (which restricts the duty to prosecute to territorial states). Duties to perform a procedural act (prosecute) are of a different nature than duties based on facts (to punish); restrictions on the former do not apply to the latter. Article IV itself does not require a territorial (or any other) nexus. Thus, if a member state is not required to exercise territorial jurisdiction pursuant to Article VI, it is still obliged to ensure punishment (by another state or tribunal) without reservation. Admittedly, punishment will be imposed by a criminal process initiated by a decision to prosecute; but as there is always at least one state of jurisdiction (as genocide, if it is committed, has to implicate one territorial state’s duty to prosecute), prosecution is always legally possible. Thus, the duty to punish includes not only the duty to promote punishment but also to promote prosecution by others. The duty to promote prosecutions is not clearly set out in the Convention. Yet, as 57 demonstrated, Article VI requires the exercise of mandatory territorial jurisdiction by the state on whose territory genocide was committed and also encourages international criminal trials. Thus, whenever a member state or an international tribunal has initiated a criminal proceeding for genocide under the requirements of Article VI, the 121

See also Article IV, mns 28–32, 45–62. See also supra, mns 22-3, and Article IV, mn. 29. 123 See Article IV, mn. 30. 122

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Article VI 57–59 duty to cooperate is focused on the specific trial. Article VI does not specify what precisely states other than the prosecuting state (or international criminal tribunal) have to do in order to comply with their duty to promote the prosecution of ge´nocidaires. However, it is clear that the member states must ensure that prosecution (and in case of conviction: punishment) are effective. Where a state party has control over a suspect or indictee, it would be required either to conduct proceedings before its own courts or to promote a third party’s prosecution. But if the latter does not exist or is unlikely to happen, the only way of complying with the absolute duty to punish (including the duty to warrant prosecution) is for the state to initiate its own criminal proceeding against the suspect. Seen in this light, the absolute duty to ensure punishment pursuant to Article IV may entail a duty to prosecute that does not depend on any territorial nexus. As it does not preclude states other than the territorial state from prosecuting genocide committed elsewhere,124 Article VI does not contradict this interpretation. 58 If Articles IV and VI are read in this light, they entail a three-level system of procedural duties for member states: (1) States on whose territory acts of genocide have been committed must prosecute ge´nocidaires (unless prosecution in the same case is already being executed by another member state – in which case a second prosecution would be legally impossible125). (2) States other than the territorial state must ensure prosecution and punishment. This they can do by either supporting a third state’s prosecution or by initiating their own prosecution. If another prosecution pursuant to Article VI is pending (either before courts of another state or before an international criminal tribunal), member states must support this process, so to comply with their duty to ensure punishment. The required support can notably take the form of judicial cooperation, including by extradition. (3) If alternative proceedings are uncertain (and thus punishment cannot not be guaranteed), or if extradition to another state is legally impossible (e. g. for protective rules regarding extradition of own nationals), the duty to punish can only be fulfilled by the member state in question performing its own criminal procedure including prosecution.126 Thus, under these specific circumstances, a subsidiary duty to prosecute suspects of genocide exists for states other than the territorial state. 59 It could be argued that this construction was contradicted by the ICJ’s judgment in the Bosnian Genocide case. In regard of the scope of the duty to prosecute the Court asserted: ‘Article VI only obliges the Contracting Parties to institute and exercise territorial criminal jurisdiction; while it certainly does not prohibit States … from conferring jurisdiction on their criminal courts based on criteria other than where the crime was committed which are compatible with international law … it does not oblige them to do so.’127

If only this passage were focused on, there would indeed be a contradiction between the ICJ’s judgment and the reading of Article VI put forward in the 124

Supra, mns 45-52. See supra, mn. 25. 126 Ben-Naftali/Sharon, JIntCrimJust 5 (2007), 867. 127 ICJ Reports 2007, 226–7 (para. 442). 125

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preceding sections. However, taking into account the broader context in which the ICJ came to this conclusion, this contradiction can be resolved. In the passage just cited, the Court referred only to the specified obligation of territorial states to exercise jurisdiction over ge´nocidaires, i. e. ‘level (1)’ of the three levels referred to in the preceding paragraph. However the Court did not stop there, but explicitly recognised Serbia’s duty to cooperate with the ICTY, which it held to have been violated.128 In reaching this finding, the ICJ recognised what in the preceding sections has been referred to as a ‘duty to ensure’ the prosecution of ge´nocidaires (as referred to at ‘level (2)’ above). As international criminal proceedings were underway before the ICTY, there was no need to move to ‘level (3)’ of the system set out above, which might have required Serbia (or indeed any other non-territorial state) to initiate proceedings for genocide before their own courts. In other words, the ICJ’s Genocide judgment does not cover all aspects of the duty to prosecute and punish (which it in fact seemed to mix up); but the end result reached in the judgment does not contradict the approach advocated here. The criticism has been raised (and some would say rightly so) that: ‘[I]n a judgment that is 171 pages long the analysis of the duty to punish perpetrators of genocide extends to less than four pages and thus appears marginal.’129 However, in those few pages, the Court addressed the question it had to decide on (and not more) which is typical of a judgment (unlike an advisory opinion). b. International cooperation and ‘aut dedere aut judicare’ Cooperation in modern international criminal law is based on the principle of 60 aut dedere aut judicare.130 Unlike many other international criminal law and human rights treaties – among them131 the Torture Convention of 1984 (Article 7)132 and the ICC Statute (Article 17)133 – the Genocide Convention does not explicitly mention this principle. Though this is due only to the fact that during its drafting period such a principle was not yet established in any general sense.134 Nevertheless, the Convention implicitly provides for it135 and can thus arguably be qualified as the first institutional (despite, for a long-time, largely theoretical) step towards international cooperation in criminal matters. Indeed, the hierarchy of prosecution and cooperation duties as portrayed 61 above136 follows the rationale of the contemporary aut dedere aut judicare principle. If a state party in a specific case is not obliged to prosecute genocide itself, it must at least ensure prosecution and punishment. In the practically relevant scenario of a state party apprehending a genocide suspect, the options for that state are identical to those imposed by the aut dedere aut judicare principle: extradite or prosecute. 128

ICJ Reports 2007, 227–9 (paras 443–50). Ben-Naftali/Sharon, JIntCrimJust 5 (2007), 862. 130 See in general e. g. Bassiouni/Wise, Aut Dedere Aut Judicare, passim; Maierho ¨ fer, ‘Aut dedere – aut iudicare’, passim; Scharf, Aut dedere aut iudicare, in: MPEPIL, passim. 131 A list of many other treaties is provided by Bassiouni/Wise, Aut Dedere Aut Judicare, 75–287. 132 Bassiouni/Wise, Aut Dedere Aut Judicare, 159. 133 This is an aspect of complementarity: Scharf, Aut dedere aut iudicare, in: MPEPIL, mn. 5. 134 Although its historical roots reach back to Hugo Grotius who mentioned it as early as in 1625, see further Scharf, Aut dedere aut iudicare, in: MPEPIL, mn. 1. 135 See e. g. Sluiter, JIntCrimJust 8 (2010), 366. 136 Supra, mn. 58. 129

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Article VI 61–64 Prosecution, if mandatory according to Article VI, has priority. But beyond such particular circumstances, a state may also choose to hand over the suspect to another state or international tribunal if proceedings there are assured. If the state of custody does not prosecute, it must automatically extradite as this alternative is the subsidiary component of the overall duty to ensure punishment. In other words, while the Genocide Convention does not explicitly mention the principle of aut dedere aut judicare, that principle is an implicit part of it.137 62 This principle is furthermore a part of the broader requirement of international cooperation. Such cooperation is an overall theme throughout the Convention, starting with Article I and at least impliedly postulated in Articles IV to VIII. The duty to prosecute and the duty to punish are the main pillars of that regime of international cooperation against genocide. This is true for cooperation with both member states and international courts. At least whenever an international tribunal falls within the scope of Article VI, unconditional cooperation is mandatory.138 This was also confirmed by the ICJ in respect of Serbia and the ICTY.139 To be effective in the fight against genocide, such cooperation is not necessarily dependent on formal requirements like, for example, a formal indictment. The fate of any pre-trial genocide investigation is determined by the effectiveness, or otherwise, of inter-state cooperation. This may include, inter alia, exchange of evidence, granting foreign investigators access to territory or facilitating witness interviews.

D. Concluding observations Article VI alone is not capable of satisfying the expectations of an effective global fight against genocide. However, in conjunction with Articles IV and V it constitutes a valuable cornerstone of the purpose of the Convention. It has been criticised more than once as being incomplete and ineffective, and such appraisals have to be taken seriously. In truth, the provision may be described as half-baked and therefore open to misunderstandings and ambiguity. And in being so it cannot be said to represent the drafters’ finest moment. Nonetheless it is a provision states and scholars should be able to deal with. Systematic interpretation as well as subsequent practice in relation to Article VI fill the legal gaps this provision initially seems to feature. 64 In particular, the now well established right to universal jurisdiction over genocide has been driven in its development by Article VI. Increasing numbers of national genocide trials document the growing local awareness of prosecuting suspects of genocide. A worldwide trend towards charging and convicting ge´nocidaires cannot be denied, which was exactly one of the Convention’s key commitments, initiated by Article VI. The recent genocide proceedings in the Netherlands (the van Anraat cases),140 Ethiopia (the Mengistu case)141 and Guatemala (the trial 63

137 See also Steven, VirginiaJIL 39 (1998–9), 460–1. A different conclusion is drawn by Maierho ¨fer, ‘Aut dedere – aut iudicare’, 165–9, though his key arguments are based in the travaux. 138 Ben-Naftali/Sharon, JIntCrimJust 5 (2007), 870–3. 139 ICJ Reports 2007, 227–9 (paras 443–50). 140 van der Wilt, JIntCrimJust 4 (2006), 239; van der Wilt, JIntCrimJust 6 (2008), 557. 141 Tiba, JIntCrimJust 5 (2007), 513; see also Article VII, mn. 22.

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against former president Rı´os Montt)142 are prominent examples of this welcome development (although in the latter two the outcome is unpredictable). The reading of Article VI suggested in this commentary might, within suitable legal frameworks, promote further genocide trials at the national level. Unlike the widely accepted right to universal jurisdiction, the implied obligations, 65 which also emanate from Article VI, as set out in this commentary, have yet to be clearly reflected in international practice. The preceding analysis suggests that unconditional cooperation duties do exist under the Genocide Convention and that they are, properly understood, watertight. However, future developments will have to prove whether these obligations are indeed taken seriously by the majority of states. After adopting the Convention, the prohibition of genocide has gained the status of jus cogens; and this could be a first recourse to strengthen corresponding cooperation duties and enforce their binding status. Article VI, despite its misleading formulation, can be utilised to strengthen duties of cooperation. Of course, reform and clarification in the light of contemporary developments would be preferable, but as this is highly unlikely, a robust interpretation of the provision – such as the one set out above – seems called for. When reflecting upon the future role of the provision, there is room for cautious 66 optimism. History has already shown that Article VI, decades after its drafting, can be revitalised and gain authority. The international penal tribunal as initially envisaged took nearly fifty years to be realised – while now the ICC gives real meaning to Article VI’s duty to cooperate with an international tribunal. The same may also be happening to cooperation duties. The recent discussion about the arrest warrant for the Sudanese president Al Bashir and the duty to cooperate according to Article VI might be the beginning of such a development.143 142 In May 2013, former president Efraı´n Rı´os Montt was convicted of genocide for atrocities against indigenous population during his regiment: Sala Tercera de la Corte de Apelaciones Rı´os Montt, 10 May 2013; see on this first judgement Roht-Arriaza/Kemp, The Rı´os Montt Judgment, passim. However, the conviction was (foremost due to procedural reasons) annulled by the Guatemalan Constitutional Court shortly afterwards; in late 2013 the case was still pending. 143 See also Sluiter, JIntCrimJust 8 (2010), 378–82.

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Article VII Genocide and the other acts enumerated in article III shall not be considered as political crimes for the purpose of extradition. The Contracting Parties pledge themselves in such cases to grant extradition in accordance with their laws and treaties in force. Table of Contents: A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Extradition in terms of Article VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Paragraph 1: genocide and political crimes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Paragraph 2: extradition in accordance with national laws and international treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘pledge themselves’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘in such cases’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘in accordance with their laws and treaties in force’ . . . . . . . . . . . . . . . . . IV. Article VII and the Genocide Convention as a whole . . . . . . . . . . . . . . . . . D. Concluding observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

mn. 1 4 7 8 11 15 16 17 19 24 27

A. Introduction Extradition is not a duty imposed by general international law but finds its sources 1 in bi- and multilateral treaties.1 States have a vital interest in judicial cooperation, which includes mutual acceptance of criminal procedures and enforcement of convictions. The promise to extradite suspects and perpetrators of crimes is the crux of such reciprocal cooperation. To best cover individual state interests, extradition is not governed by a central, multilateral regime applicable to a large number of states, but decentralised.2 Perhaps the most common and progressive exception is that of the European arrest warrant, which is based on the 2002 EU Framework Decision on the European Arrest Warrant.3 Outside of the EU Framework Decision, global international treaties are rare. The Genocide Convention, however, might be considered to impose some conditional obligations of extradition. While Article VII is neutral in this regard, it has been set out elsewhere that Articles IV and VI can be read to reflect the principle of aut dedere aut judicare.4 Indeed this principle can be seen as a conditional duty to extradite, that comes into effect if a state party does not initiate a criminal procedure before its own (domestic) court. Article VII consists of two parts: one denying genocide a status of a ‘political 2 crime’ in terms of extradition, the other granting a reservation to concurring law and treaty provisions in regard to extradition procedures. The same composition (and even almost the same wording) may be found in Article XI of the 1973 Apartheid Convention.5 Its subsequent ‘duplication’ in another treaty should however not be 1

Stein, Extradition, in: MPEPIL, mn. 10. Stein, Extradition, in: MPEPIL, mns 45–59. 3 Stein, Extradition, in: MPEPIL, mn. 50; further on the European Arrest Warrant and the Convention Roth, in: Gaeta, Genocide Convention, 281–2. 4 Article VI, mns 60–62. 2

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2–5

taken to reflect the success of Article VII as an effective mechanism. Indeed, this provision has hardly ever been invoked. Therefore it presumably does not play the most central role in the Genocide Convention. The relativity of obligations flowing from it reflects its weakness. As will be shown, the first paragraph of Article VII, denying a ‘political crimes’ defence in extradition procedures, is this provision’s actual benefit. The subsequent reservation to other obligations, however, makes it hard to deduce a solid duty to extradite out of Article VII. 3 However, Article VII cannot be understood in isolation, but needs to be interpreted in the context with its neighbouring articles, notably bearing in mind the comprehensive cooperation duties imposed by Articles IV and VI. Fortunately, Article VII does not obstruct the results of these (much more relevant) provisions. Rather it may be said to supplement them. As it is, it concentrates on procedural questions of extradition that result from the duty to prosecute or extradite (which can derive from extradition treaties, or, under certain circumstances, from Articles IV and VI). Furthermore, to be the basis for effective enforcement, it is dependant on provisions of domestic criminal law, as required by Article V.

B. Drafting history 4 The drafting history of Article VII was rather straight forward without many obstacles.6 Although GA Resolution 96(I) did not mention the issue of extradition explicitly, the GA generally recommended, ‘… that international co-operation be organized between states with a view to facilitating the speedy prevention and punishment of the crime of genocide …’.7

Extradition is one particular feature of international cooperation in criminal matters and was thus implicitly included in the resolution. The UN Secretariat recognised this and addressed the matter in its Draft Convention prepared in May 1947:8 ‘Article VIII: [Extradition] The High Contracting Parties declare that genocide shall not be considered as a political crime and therefore shall be grounds for extradition. The High Contracting Parties pledge themselves to grant extradition in cases of genocide.’

This first paragraph already included the two main aspects regarding extradition, viz, denying that genocide could amount to a political crime, and making genocide subject to extradition. The second paragraph was aimed at excluding genocide as any possible reason to deny extradition. However, although it might be read differently, it was not meant to prompt an absolute duty to extradite a suspect only upon request of another state without first checking the matter.9 5 The subsequent Draft Convention prepared by the Ad Hoc Committee10 literally confirmed the first paragraph. Beyond that, it modified the second one by concretizing a duty to extradite according to the state parties’ national law:

5

See also Stein, Auslieferungsausnahme, 124. See also Roth, in: Gaeta, Genocide Convention, 279. 7 UN Doc. A/RES/96(I). 8 UN Doc. E/447, 8. 9 UN Doc. E/447, 39. 10 UN Doc. E/794. 6

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‘Article IX: [Extradition] 1. Genocide and the other acts enumerated in Article IV shall not be considered as political crimes and therefore shall be grounds for extradition. 2. Each party to this Convention pledges itself to grant extradition in such cases in accordance with its laws and treaties in force.’

The reference to national law in paragraph 2 was adopted upon an amendment proposed by the United States.11 The whole rule, however, reaches back to a request of the representative of Poland and was adopted unanimously without opposition.12 The modified second paragraph was meant to be a compromise acceptable to those states that could have faced constitutional problems in complying with an absolute duty to extradite.13 The Sixth Committee amended the draft only marginally. Proposals for substan- 6 tive revision did not gain support, particularly an amendment proposal promoted by Belgium and the United Kingdom. According to this, unlike in the other provisions, what later was to become Article VII should exclude any form of participation in genocide as stipulated by Article III. However, such a restriction was rejected by all other states. The British, though, succeeded in replacing the phrase ‘and therefore shall be grounds for extradition’ by ‘for purposes of extradition’.14

C. Interpretation Unlike the preceding Articles IV (‘persons committing genocide’), V (‘persons 7 guilty of genocide’) and VI (‘persons charged with genocide’), Article VII does not spell out its personal scope expressly. It rather concentrates on genocide as a criminal offence pursuant to Articles II and III as well as on the notion of extradition. This suggests that no personal restriction, at all, may be applied in terms of extradition. Instead, whenever extradition is legally and factually possible, any person whose extradition is sought must be extradited. This said, the notion of extradition first of all needs to be clarified. A pending request or procedure of extradition is the conditio sine qua non for both paragraphs of Article VII. Such a procedure is subject to certain rules and obligations, which are in parts shaped by Article VII, but also in a considerable amount by other conventional provisions. I. Extradition in terms of Article VII Extradition as a legal term ‘designates the official surrender of an alleged offender 8 from justice, regardless of his or her consent, by the authorities of the state of residence to the authorities of another state for the purpose of criminal prosecution or the execution of a sentence.’15 This definition suggests that extradition is substantially limited to interstate relationships – and not applicable to judicial cooperation between a state party and an international tribunal. Correspondingly, the ICC Statute (Article 90) uses this term exclusively in regard of cooperation between states and not the ICC, while Article 89, addressing relations between state 11

UN Doc. E/623, 18–9, see also Roth, in: Gaeta, Genocide Convention, 281. UN Doc. E/794, 31. 13 Schabas, Genocide in Int’l Law (2nd ed.), 473. 14 Schabas, Genocide in Int’l Law (2nd ed.), 473. 15 Stein, Extradition, in: MPEPIL, mn. 1. 12

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8–11

parties and the ICC, uses the term ‘surrender’. In line with this, the Statutes of the ICTY (Articles 19 and 29) and of the ICTR (Articles 18 and 28) also avoid the term ‘extradite’ and speak instead of ‘surrender’ and ‘transfer’.16 Under that approach, the reference to extradition in the sense of Article VII would only cover inter-state cooperation. 9 It is doubtful, though, whether such a restrictive reading complies with the object and purpose of the Genocide Convention. When the Convention used the term ‘extradition’ in 1948, the differentiation mentioned in the preceding paragraph had not yet developed. What is more, the Convention did envisage cooperation with an international penal tribunal; and the subsequent establishment of international criminal tribunals (whose statutes impose upon states far-reaching duties of cooperation) have turned this into a real possibility.17 Against that background, it would be wrong to restrict the term ‘extradition’ as used in Article VII to forms of inter-state cooperation. The better view suggests that whenever a state party is requested to transfer or surrender an (alleged) ge´nocidaire, Article VII has to be taken into account. It is admitted, though, that extradition/surrender provisions in the respective statutes of the international tribunal of jurisdiction prevail as leges speciales. 10 But it remains possible that the general cooperation duties emanating from the Convention, including Article VII, are relevant in respect of international tribunals.18 First, state parties to the Genocide Convention may not be bound by those tribunals’ statutes, for instance if they are no party to the ICC. Then Article VII of the Convention is not overruled by a lex specialis and thus in force. Second, extradition/surrender provisions of future international tribunals could (in theory) be more lenient, for instance, they could admit the ‘political crime’ exception to bar extradition. In these cases, the conventional duty imposed by Article VII remains relevant.

II. Paragraph 1: genocide and political crimes 11 The relationship between ‘extradition’ and ‘political crimes’ is crucial for the understanding of Article VII. To qualify an offence as political has been the most popular exception to extradition obligations.19 It is not a rule of treaty or customary international law that political offences preclude extradition obligations.20 But treaties on extradition issues widely accept that the accused may not be extradited for ‘political crimes’.21 Thus, in general, states are entitled (or even required) to withhold extradition if the offence for which extradition is sought is a ‘political’ one. In the absence of an impartial assessment mechanism, the determination of whether an offence is political is first and foremost a matter for the state from whom extradition is sought. 16

See also Roth, in: Gaeta, Genocide Convention, 280–1. See also Article VI, mns 32–43. 18 Article IV, mns 30–32; Article VI, mns 54–62. 19 See on this issue comprehensively Stein, Auslieferungsausnahme, passim, and further on terrorism as a popular field of this issue Saul, JIntCrimJust 4 (2006), 85. 20 Stein, Extradition, in: MPEPIL, mns 31–3. 21 Stein, Extradition, in: MPEPIL, mn. 31. This was firstly questioned in regard of terrorism in the League of Nations from 1934, but without considerable success, see further Saul, JIntCrimJust 4 (2006), 78. 17

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The definition of ‘political crimes’ is anything but clear and uniform.22 The 12 purposes for cases of and invocation to this exception are numerous.23 In essence, it allowed inter-state cooperation in judicial and criminal matters (by ensuring extradition as a matter of course), while safeguarding state discretion in politically sensitive cases. Self-judging in character, the political offence exception was used and abused, and purposefully open to political considerations on a case-by-case basis. Over the course of the twentieth century, as the international community gradually moved towards agreement on the outlawing of certain egregious acts, the political offence exception was seen more critically. While not recognising any generalised duty to extradite, states began to agree on ‘exceptions from the exception’. Article VII is part of these trends to curb the room for political manoeuvring. It 13 stipulates expressly that genocide or related acts pursuant to Articles II and III of the Convention do not qualify as political offences for the purpose of extradition. In other words, Article VII outlaws political asylum for ge´nocidaires. In the face of its clear wording, there is not even room for debate whether acts of genocide might, under certain circumstances, be recognised as political offences. This is the only possible consequence of genocide being the ‘crime of crimes’, and it also follows from the absolute duty to ensure punishment of genocide recognised in Article IV. From a contemporary perspective, the approach adopted in Article VII might appear rather self-evident; clauses similar to Article VII have become rather common in treaties addressing aspects of international cooperation in criminal matters. But during the drafting of the Genocide Convention, to reject, in absolute terms, that genocide could ever be a ‘political offence’ was a novelty.24 What is more, despite the influence of the Nuremberg Principles, a general consensus that international crimes could not be qualified as political offences took a considerable while to emerge; it did not e. g. initially apply to war crimes pursuant to the 1949 Geneva Conventions.25 Over time, however, particularly in an era of international criminal jurisdiction, the view that international crimes cannot amount to political offences has gained ground.26 All this is true ‘for the purposes of extradition’ (or indeed surrender). It should 14 not be taken to mean that there was nothing ‘political’ about genocide. Of course, in many respects, genocide remains an essentially political crime. Acts enumerated in Articles II and III often reflect a certain policy,27 they have historically been propagated by political elites and (even though ‘political groups’ are not as such protected) target the political victims of ge´nocidaires. Article VII does not rule out such perspectives. It is only for the purpose of extradition that genocide and politics are disentangled.

22

Stein, Auslieferungsausnahme, 62–85. Stein, Auslieferungsausnahme, 49–62. 24 Apparently, the first ‘political crimes exception’ was laid down in the 1937 Convention against Terrorism of the League of Nations but had never come into force, see further Saul, JIntCrimJust 4 (2006), 81. 25 Stein, Auslieferungsausnahme, 124–9, 171–5. 26 Roth, in: Gaeta, Genocide Convention, 284–6, providing further examples. 27 Drost, Genocide, 133; Schabas, Genocide in Int’l Law (2nd ed.), 479. 23

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15–19

III. Paragraph 2: extradition in accordance with national laws and international treaties 15 The second paragraph of Article VII appears to be less clear than the first. Three notions, all referring to the above displayed meaning of ‘extradition’, deserve further attention: ‘pledge themselves’, ‘in such cases’ and ‘in accordance with their laws and treaties in force’. Their meaning as well as their interrelation shall be assessed as follows. 1. ‘pledge themselves’ 16

The formulation that state parties ‘pledge themselves’ is unique in the whole Convention. This fact should not be overstated; but it shows that at any rate all member states have emphasised to be bound by the conventional stipulations on extradition issues. Particularly, the commitment of state parties is directed to grant extradition of (suspected) ge´nocidaires. This means in clear terms that, whenever another member state (or an international tribunal) requires the extradition of a person charged with having committed genocide or a related act (and subject to the conditions set out below), the requested person will be extradited. Typically, under national legal systems, extradition is dependent on a specific decision, and a separate procedure, for every single case, as shown by the word ‘grant’. (Otherwise, Article VII would have been formulated like e. g. ‘will extradite’ to underline a selfexecuting character.) While not specifying the national procedure to be followed, Article VII generally mandates the outcome: member states are ‘to grant extradition’. However, it stops far short of imposing an absolute duty. Extradition is only to be granted if two further requirements, both set out in paragraph 2, are met. 2. ‘in such cases’

The first requirement consists of the terms ‘in such cases’ (and its identical equivalents in the other authoritative language versions). This apposition refers back to the first paragraph of Article VII, which mentions extradition in regard of ‘political crimes’. Thus, when an extradition procedure is pending, and the exception of a political offence is raised, this exception must be ignored and extradition must be granted. While the first paragraph provides that genocide, as a matter of substantive extradition law, must not be treated as a political offence, the second paragraph ensures that this is procedurally implemented in the extradition process. 18 Additionally, there is also a negative aspect of the apposition ‘in such cases’. If state parties pledge to grant extradition irrespective of a ‘political crime objection’, they are in their commitment limited to these (‘such’) cases. A further promise to grant extradition whenever another member state would ask is not included in Article VII. This provision is instead neutral vis-a`-vis further extradition obligations. By its plain wording it does neither preclude nor oblige to further acts of extraditing suspects. 17

3. ‘in accordance with their laws and treaties in force’ 19

The reference to state parties’ ‘laws and treaties in force’ constitutes the second requirement. Granting extradition as encompassed by Article VII must be ‘in 266

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accordance’ with national provisions. This notion sounds similar to the term used in Article V, where it refers to the enactment of legislation.28 But Article VII deals with a different kind of subject matter, viz. procedural conduct in regard of a given case. Where Article V typically requires changes to domestic law, Article VII, upon its clear terms, means that existing laws need not be altered: they form the framework within which extradition requests are to be dealt with. As part of the second paragraph of Article VII, the ‘law and treaties reservation’ 20 is one of procedural law.29 The systematic connection to the word ‘grant’ discloses that only the procedure of granting extradition, and not prior questions of substantive law, are touched upon by this reservation. As such, both extradition agreements and existing procedural barriers to enforce extradition are completely recognised by Article VII. First of all, a duty to extradite must exist in a specific case, which is typically established by treaty (including, under certain circumstances, the Genocide Convention itself). As a limit to such extradition duties, national or international rules can recognise certain exceptions. For example, if member states, by their constitution, national laws, or international obligations, are precluded from extraditing a certain group of persons, or to apply certain reasons different to the ‘political crimes’ exception, this status is not changed by Article VII. Put differently, existing extradition barriers are not called into question. Among those recognised are e. g. the protection of nationals from foreign jurisdiction,30 the risk of death penalty and torture,31 or the peril of violating fundamental procedural rights.32 Particularly in terms of torture, Article 3 of the 1984 UN Torture Convention33 requires states not to expose anybody to torture committed abroad, this overruling the conventional duty to extradite ge´nocidaires.34 However, as long as a duty to extradite exists, extradition barriers that are not 21 laid down in national law or international treaties cannot be invoked by member states as they are not generally ‘in force’ pursuant to Article VII. For example, if a bilateral extradition treaty imposes a duty to extradite, but is subject to a political offence exception, Article VII would preclude the invocation of that exception. Beyond duties derived from other treaties, extradition duties can also derive from the Genocide Convention itself. While Article VII does not impose them, the Convention, by means of Articles IV and VI, obliges its state parties either to prosecute or to extradite suspects of genocide.35 Article VII leaves that conventional duty unaffected. As a recent example, the extradition dispute between Zimbabwe (a state party to 22 the Convention since 1991) and Ethiopia (among the initial signatories) illustrates the potential impact of Article VII, as well as its limits. Zimbabwe is granting exile to the former Ethiopian president Mengistu Haile Mariam and as such is in 28

Article V, mns 23–8. Stein, Auslieferungsausnahme, 122. 30 Robinson, Genocide Convention, 88; Roth, in: Gaeta, Genocide Convention, 290–1; Schabas, Genocide in Int’l Law (2nd ed.), 478. 31 Roth, in: Gaeta, Genocide Convention, 293–4; Schabas, Genocide in Int’l Law (2nd ed.), 481–2. 32 Roth, in: Gaeta, Genocide Convention, 294–7; Schabas, Genocide in Int’l Law (2nd ed.), 481–3. 33 Article 3 para. 1 reads as follows: ‘No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.’ 34 Schabas, Genocide in Int’l Law (2nd ed.), 482. 35 Article VI, mns 60–2. 29

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22–26

continuous breach of the Convention for not extraditing him to his home country. There he was prosecuted for (and interim convicted of) genocide.36 Zimbabwe denied Mengistu’s extradition just because no extradition agreement with Ethiopia exists.37 Particular legal barriers were not invoked, though. This quite rare conflict displays a situation in which Article VII should secure extradition requests between state parties. According to what Zimbabwe stated, extraditing Mengistu is ‘in accordance with [Zimbabwe’s] laws and treaties in force’ and thus must be granted without reservation unless Zimbabwe itself would try the suspect. 23 In most situations different to the Mengistu case, though, the ‘law and treaties’ reservation at the end just reduces Article VII to the mere prohibition of invoking genocide to be a political offence in terms of extradition. States normally have and rely on a distinguished catalogue of rules on extradition barriers ‘in force’ which is compatible with Article VII and then indeed prevails.

IV. Article VII and the Genocide Convention as a whole 24 The rather limited role Article VII alone plays in regard to extradition does not terminate the analysis on extradition as a matter to the whole Genocide Convention. Quite to the contrary, as seen in commentaries to other provisions, extradition makes up a vital part within the conventional duties to international cooperation. Among these, the principle of aut dedere aut judicare deserves to be mentioned, which has been deduced from Articles IV and VI.38 Article VII safeguards this principle in regard to the invalid ‘political crimes’ objection, which cannot be invoked to undermine extradition. Beyond that, Article VII is neutral. As such, it cannot be regarded as a source of this principle, but it does not contradict the findings of the other conventional provisions, either.39 Put differently, if a member state then decides not to extradite a person, it is still obliged to prosecute that person before its own courts.40 25 Moreover, Article VII is also neutral in regard of duties to extradite emanating from other treaties or sources of law. The special cooperation duties of the ICC Statute, e. g., are completely independent from Article VII, irrespective as to whether a state obliged to surrender a person to the ICC is party to the Convention or not. 26 Finally, Article VII needs to be seen in light of the duty to enact national legislation to give effect to the Convention as set out in Article V. State parties must ensure that in their domestic extradition procedure, cases of genocide are excluded from the ‘political crimes’ exception. At least in member states with a formalised extradition procedure governed by the rule of law, this would seem to require national legislation. Thus, the ‘necessary legislation’ required by Article V will typically comprise changes to the domestic extradition rules.41 In line with this, a large number of member states have subsequently modified their domestic procedures after having ratified, or acceded to, the Convention.42 36

On this case as a whole Tiba, JIntCrimJust 5 (2007), 513. Tiba, JIntCrimJust 5 (2007), 517. 38 Article VI, mns 60–2, see also Article IV, mns 28–32. 39 See further Roth, in: Gaeta, Genocide Convention, 304–9. 40 Schabas, Genocide in Int’l Law (2nd ed.), 478; see also Article VI, mn. 58. 41 Robinson, Genocide Convention, 87. 42 Schabas, Genocide in Int’l Law (2nd ed.), 480; Stein, Auslieferungsausnahme, 123. 37

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D. Concluding observations As has been observed, questions concerning Article VII are ‘far from being the 27 central core of the Convention’.43 Even if one favours the view that the provision ‘has been a milestone in the history of extradition’,44 its individual importance has remarkably decreased.45 It complements the Convention’s other provisions on international cooperation, notably Articles IV and VI, and in that respect has been helpful. Even though it does not form ‘the central core’, the mere existence of a separate provision on extradition in the Convention is welcome. While duties to extradite can be deduced from other provisions, Article VII as an explicit rule on this matter underlines the importance of extradition as a central feature of international cooperation. This provision’s most important (and arguably only) merit is the outlawing of 28 political asylum for ge´nocidaires. Beyond that, Article VII has not played a decisive role in extradition matters in regard to genocide cases. Whilst extradition under the Convention is rather connected to jurisdictional issues,46 Article VII has not been the source of actual problems. But this development may be interpreted positively: It seems that the denial of a ‘political crimes’ exception as stipulated by Article VII has gained general support. Irrespective of Article VII, extradition for genocide has become more relevant 29 since the 1990s. As prior to 1985, according to the Whitaker Report, ‘no extradition for genocide under the convention has occurred at all’,47 a decade later though, the foremost Rwandan suspects have been surrendered to justice charged with genocide.48 This encouraging development does not reanimate Article VII as a central norm for extradition in the Convention. It rather proves that the Genocide Convention and its central rationales as such have gained significant relevance. This is not the merit of Article VII but of the growing importance of conventional cooperation duties in general. 43

Roth, in: Gaeta, Genocide Convention, 302. Roth, in: Gaeta, Genocide Convention, 309. 45 Drost, Genocide, 132–3, even denied that Article VII had any relevance at any time. 46 See the cases listed and analysed by Roth, in: Gaeta, Genocide Convention, 300–2. 47 Whitaker, Report on Genocide (UN Doc. E/CN.4/Sub.2/1985/6), 34–5 (para. 63). 48 Schabas, Genocide in Int’l Law (2nd ed.), 484–6. 44

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Article VIII Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III. Table of Contents: A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. The utility of Article VIII: ‘call upon … to’............................. 1. Rights to state referral under the UN Charter compared with Article VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. The relationship between Article VIII and the UN Charter . . . . . . . . II. Personal scope: ‘any contracting party’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Substantive scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘competent organs of the UN’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Subsequent practice regarding the competence of UN organs . . . . . 3. ‘actions under the UN Charter’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘they consider appropriate’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D. Subsequent developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. International Convention on the Suppression and Punishment of the Crime of Apartheid (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. International criminal law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. UN initiatives on genocide prevention and ‘Responsibility to Protect’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Further recent developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E. Concluding observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

mn. 1 5 10 12 14 18 20 23 24 28 35 39 42 46 49 50 52 56 58

A. Introduction Article VIII, together with Article IX, is one of two provisions of the Genocide 1 Convention dealing with state referrals to organs of the United Nations. In contrast to Article IX, which applies exclusively to inter-state disputes regarding the interpretation or application of the Convention coming before the ICJ, Article VIII refers more broadly to the relationship between the Convention and all ‘competent organs’ of the UN. Whilst the formulation of the provision was the subject of criticism both during the drafting of the Convention and indeed subsequently, there are a number of ways in which Article VIII has contributed to the enhancing international cooperation with regards to the establishment of a system of genocide prevention. As such, referrals under Article VIII might be one way for a state to comply with its broader duty to prevent genocide imposed by Article I.1 One of the core problems of the Genocide Convention is that it does not address 2 or impose obligations on the UN itself. The conventional obligation to prevent and suppress genocide is imposed on states. However, Article VIII specifically involves the UN in supporting state parties to meet their obligations under the Convention. It provides an additional means of referring a situation to the UN other than 1

Conversely, the duty to prevent is not ‘absorbed’ by Article VIII referrals, see Article I, mn. 32.

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Article 35 of the UN Charter. As such, it is suggested that in some small way this provision is capable of remedying the congenital defect that the Convention does not impose any obligations on the UN to prevent or punish genocide. But for the most part, the UN’s role in relation to genocide has developed outside the realm of the Convention. 3 The interaction between Article VIII and the modern institutional framework on genocide in international law is a product of both the legal configuration of the Convention as well as the related subsequent political development; as such it is necessary to give attention to both the legal and political frameworks. In doing so, this commentary will examine the legal features of Article VIII and assess the additional protection it provides in relation to the UN Charter and the rights conferred upon state parties. The commentary then seeks to highlight that Article VIII forms part of a nexus with the UN Charter and the obligations imposed on state parties. 4 Article VIII requires that the UN provide institutional assistance to state parties from the moment the request is made. In addition to institutional assistance being provided by the UN in relation to requests from states, the UN has also subsequently developed means of assistance proprio motu. At least indirectly, Article VIII has served as an important component in the contemporary international law and particularly the UN framework in relation to the prevention and punishment of genocide.

B. Drafting history 5 Whilst Article XIII in its current formulation is not set out in explicit terms in GA Resolution 96(I), there is the recommendation that: ‘…international co-operation be organised between States with a view to facilitating the speedy prevention and punishment of the crime of genocide …’2

The policy of cooperation recommended in this provision of the GA Resolution was subsequently to find expression in the Genocide Convention. As this was not a completely new terrain in the early years of the UN Charter, chances of establishing a system of inter-state cooperation appeared to be more convenient from the beginning of the drafting process. 6 This concept found more concrete expression in the Draft Convention prepared by the UN Secretariat in May 1947 and adopted by the Secretary General of 26 June 19473 which stated in Article XII that: ‘Irrespective of any provision in the foregoing articles, should the crimes as defined in this Convention be committed in any part of the world, or should there be serious reasons for suspecting that such crimes have been committed, the High Contracting Parties may call upon the competent organs of the United Nation to take measures for the suppression or prevention of such crimes. In such case the said Parties shall do everything in their power to give full effect to the intervention of the United Nations.’

The significance of this draft article is the mention of the ‘competent organs’ of the UN – crucially extending the Convention beyond the state parties. The rationale 2 3

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for this draft article in fact envisaged that the UN play some oversight role in relation to compliance with the obligations imposed on state parties.4 Due to the state of development of international criminal law at this time, it was felt that strong international cooperation with the support of the UN was required to ensure compliance with the obligations set out in the Convention.5 However, details at this stage as to how exactly the UN would ensure the compliance with the Convention were not clear and doubts were already raised as to whether the UN was competent to play any role in relation to non-member states.6 Such contentious issues were the subject of consideration in the Ad Hoc Committee. Despite several amendment proposals, disagreement remained in relation to two 7 main legal issues, namely whether specific UN organs should be mentioned in Article VIII and whether there should be a compulsory duty to notify those organs or not.7 However both proposals to give the Security Council exclusive competence under Article VIII and to provide for a specific obligation to report relevant cases to the UN did not attract sufficient support at this stage of the drafting process.8 Instead, a compromise based on a provision earlier proposed by China was adopted by the Ad Hoc Committee,9 which referred to the UN as a whole in the first paragraph and recognised a general right of notification in the second paragraph. The result of the compromise provision was Article VIII of the Draft Convention prepared by the Ad Hoc Committee entitled ‘Action of the United Nations’: ‘Article VIII: [Action of the United Nations] 1. A party to this Convention may call upon any competent organ of the United Nations to take such action as may be appropriate under the Charter for the prevention and suppression of genocide. 2. A party to this Convention may bring to the attention of any competent organ of the United Nations any case of violation of this Convention.’10

However this compromise provision did not bring an end to disagreement 8 regarding the formulation of Article VIII. Before the Sixth Committee the assumption that the role of the SC could be extended without amendment of the Convention appeared to be widely held. Ultimately, a joint a proposal by the United Kingdom11 and Belgium12 suggested eschewing any reference to the SC since the necessary competence for SC action could be found in the UN Charter; this was accepted and draft Article VIII was adopted by the Sixth Committee.13 A later attempt to reintroduce a provision which specifically envisaged SC action (supposedly to ensure that mention of a UN organ other than the ICJ was included in the Convention14), including the submission of an amendment by Australia to 4

UN Doc. E/447, 45. UN Doc. E/447, 45–6. 6 UN Doc. E/447, 46, see also Schabas, Genocide in Int’l Law (2nd ed.), 534–5. 7 Inter alia by the USA (UN Doc. E/632) and the Soviet Union (UN Doc. E/AC.25/7), for more details Schabas, Genocide in Int’l Law (2nd ed.), 535; UN Doc. E/794, 33–5. 8 UN Doc. E/794, 33; further Schabas, Genocide in Int’l Law (2nd ed.), 536–7. 9 UN Doc. E/794, 34–5; Schabas, Genocide in Int’l Law (2nd ed.), 536. 10 UN Doc. E/794, see also Robinson, Genocide Convention, 131–7. 11 UN Doc. A/C.6/236. 12 UN Doc. A/C.6/217. 13 Schabas, Genocide in Int’l Law (2nd ed.), 536; UN Doc. A/C.6/SR.101 (28 votes to 18, 1 abstention). 14 Gaja, in: Gaeta, Genocide Convention, 401; Robinson, Genocide Convention, 91; Schabas, Genocide in Int’l Law (2nd ed.), 538. 5

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this end, was rejected by a Committee vote and Article VIII was adopted without further deliberation.15 9 Despite the tumultuous drafting process it is clear that at all times the state parties were seeking to achieve strong international cooperation to achieve the goals of the Convention and that the UN was to play some role in support of the state parties in this respect. Although the Convention does not place any obligations on the UN itself, the drafting process clearly shows that the drafters wanted to ensure strong institutional cooperation rather than placing narrow obligations on one UN organ or another.16

C. Interpretation 10 Notwithstanding concerns expressed during the drafting, Article VIII is by no means a useless provision; once interpreted in light of the Convention’s object and purpose and the subsequent practice of state parties, Article VIII can be filled with meaning. This section will firstly examine the meaning and scope of the right of any state party to ‘call upon any competent organ of the United Nations to take such action under the Charter of the United Nations…’ before assessing the practical issues regarding the procedure of state referrals. However, the provision is not a ‘catch all’ clause covering the totality of UN action against genocide. In order to give a full account, a separate section addresses subsequent developments that – while not coming within the scope of Article VIII – are nevertheless relevant to an understanding of the UN’s role in the prevention and suppression of genocide.17 11 Unlike Article IX, addressing inter-state proceedings about the interpretation, application or fulfilment of the Convention, the scope of application of Article VIII is far from clear. In contrast with the initiation of strictly judicial proceedings before the ICJ which is governed by the ICJ’s Statute, referral to UN organs is a much more amorphous concept. Referral under Article VIII can be seen as a more political procedure, which serves as an alternative weapon in achieving the prevention and punishment of the crime of genocide. The following section attempts to highlight how Article VIII, in establishing a right to call upon UN organs for support, can be potentially useful in achieving compliance with the Convention. I. The utility of Article VIII: ‘call upon … to’ 12 In light on criticisms of Article VIII as being without utility18 or even senseless19 this section seeks to highlight that this provision in fact provides a means of referral to UN organs that is independent from the means of referral available under the UN Charter. 13 The expression ‘call upon … to’ signifies by its ordinary meaning ‘demand that someone do something’.20 This first and foremost is formulated as a right of states to address themselves to, and to be heard by, United Nations organs, e. g. by raising 15

UN Doc. A/C.6/SR.105. Robinson, Genocide Convention, 89–90. 17 Infra, mns 46 et seq. 18 Whitaker Report, 35–5 (paras 65–6); but see also Schabas, Genocide in Int’l Law (2nd ed.), 538. 19 Drost, Genocide, 133–4. 20 Oxford Dictionary, 248 (‘call’, phrasal verbs, ‘call on’, para. 2, ‘call upon’ with infinitive). 16

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awareness for a particular situation, by demanding action, or by proposing a certain course of conduct. While that much is undisputed, the question remains whether Article VIII, by recognising a right to ‘call upon’ others, requires a little more. In particular, it could imply not only a right to be heard by the respective organ, but also a right to some form of reaction. Of course, as regards the specific reaction, the eventual decisions will have to be made by the ‘competent organs’ as they are ‘to take actions … they consider appropriate’.21 In other words, Article VIII does not imply a right to see one’s calls for action heeded, let alone grant a right to force upon UN organs a particular course of action. However, while UN organs retain discretion as to the specific course of action chosen, there are good arguments to suggest that Article VIII requires at least some form of reaction (and be it only a rejection). As regards the wording of the provision, this is brought out in particular by the French and Spanish language versions, which use ‘saisir’ and ‘recurrir a’, both of which imply a reaction following a request. Moreover, it is relevant that terms like ‘call upon’, ‘saisir’ and ‘recurrir a’ typically are used in relation to court proceedings, and presuppose that the court that has been ‘saisi’ responds in some way. This result can draw support from the object and purpose of the Convention, which recognises the crucial role of the United Nations in the prevention and punishment of genocide. A mere right to be heard, not accompanied by a right to some form of response, would hinder effective responses to genocide at least when states need UN support to comply with their conventional duties. 1. Rights to state referral under the UN Charter compared with Article VIII The UN Charter provides for a power of state referral in Article 35, paragraphs 1 14 and 2: ‘1. Any Member of the United Nations may bring any dispute, or any situation of the nature referred to in Article 34, to the attention of the Security Council or of the General Assembly. 2. A state which is not a Member of the United Nations may bring to the attention of the Security Council or of the General Assembly any dispute to which it is a party if it accepts in advance, for the purposes of the dispute, the obligations of pacific settlement provided in the present Charter’22.

Without prejudice to their status of being a UN member state or not,23 both paragraphs enable states to ‘bring to the attention’ of the GA or SC international disputes. Unlike Article VIII as construed above, the UN Charter, however, is silent on the consequences that flow from such a referral. Whilst the right to bring a dispute to the attention of the GA or SC implies nothing more than a right of notification, the right ‘to call upon’ as set out in the Genocide Convention implies that some action is required of the UN organ upon notification.24 For instance, Rule 3 of the Provisional Rules of Procedure25 of the SC appears to require nothing more than that the President call a meeting of the SC when a situation is referred to it under Article 35

21

Infra, mns 24 et seq. Emphasis added. 23 More infra, mns 20-2. 24 Oxford Dictionary, 102 (‘attention’, para. 1). 25 Such procedure rules of an organ match the broad meaning of ‘subsequent practice’, see Villiger, Commentary on the VCLT, Article 31, mns 22–3, 19. 22

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to decide whether a situation ought to be placed on the agenda of the SC.26 While this indeed might be sufficient to comply with a right of notification, it would be an insufficient response to a ‘call’ for action. The distinction between the two was brought out by the Ad Hoc Committee draft which distinguished between the right of states to ‘bring [matters] to the attention’ of the United Nations and the right to ‘call upon’ them.27 The French and Spanish versions of Article VIII confirm this result. The formulations ‘attirer l’attention’ (French) as well as ‘llevar a la atencio´n’ (Spanish) both do not require a subsequent action but are instead limited to a right to be heard. In the French and Spanish (just as in the English) versions, the UN Charter therefore deviates from the terminology employed in Article VIII of the Genocide Convention and uses ‘softer’ terms to describe the different rights to initiative granted to states. The comparison suggests that, precisely because the right to bring a matter to the attention of the Security Council under Article 35 of the Charter was more limited in scope, it made sense for Article VIII of the Genocide Convention to provide for a stronger right to ‘call upon’ UN organs. 15 Furthermore, before bringing a situation to the attention of the SC under Article 35 an additional hurdle in the form of Article 33 para. 1 UN Charter must be overcome. According to this provision parties to a dispute must first of all try to settle the dispute through any of the means of pacific settlement set out therein.28 It is only after such settlement has been attempted and failed that a dispute can be brought to the attention of the GA or SC under Article 35 UN Charter.29 No such requirement is imposed on state parties to the Genocide Convention before they can resort to Article VIII. 16 In relation to the GA, no further provision is made for state referrals in the UN Charter. Under Rules 13 lit. (e) and (h) of the GA’s Rules of Procedure (the latter making specific reference to Article 35 of the Charter) all items proposed by member states and non-member states must be included on the agenda of a subsequent session of the GA.30 Consequently, in contrast to the SC, bringing an issue to the attention of the GA entails not only notification but also the right to have the item placed on the agenda of the GA. This creates a situation more akin to that found in Article VIII of the Genocide Convention, however it should be noted that the GA may alter its Rules of Procedure whilst modification of Article VIII can only be achieved through the formal amendment process set out in the Convention. No provision is made under the Charter for state initiatives in relation to any other UN organ.31 26 UN Doc. S 796/Rev.7; see further Wasum-Rainer/Jahn-Koch, in: Simma/Khan/Nolte/Paulus, Charter of the UN (3rd ed.), Article 30, mns 14–56; Schweisfurth, in: Simma/Khan/Nolte/Paulus, Charter of the UN (3rd ed.), Article 35, mns 26–8. As adopted by the SC pursuant to Article 30 of the UN Charter, this rule is part of the subsequent practice of the UN members (at least those that have been members of the SC so far) und thus a primary means of interpretation according to Article 31 para. 3 lit. (b) VCLT. 27 Supra, mn. 7. 28 Whilst still legally binding, Article 33 para. 1 has somewhat lost its significance since states most often now refer ‘situations’ rather than ‘disputes’ and as such avoid the application of this provision; see for references Schweisfurth, in: Simma/Khan/Nolte/Paulus, Charter of the UN (3rd ed.), Article 35, mn. 14. 29 Schweisfurth, in: Simma/Khan/Nolte/Paulus, Charter of the UN (3rd ed.), Article 35, mn. 14. 30 In fact, the same applies to non-members pursuant to Rule 13(h), with an explicit reference to Article 35 para. 2 UN Charter; UN Doc. A/520/Rev.17; see further Fitschen, in: in: Simma/Khan/ Nolte/Paulus, Charter of the UN (3rd ed.), Article 21, mn. 46. 31 Although reference to state initiatives made be contained within their Rules of Procedure, see Rule 9 para. 2 lit. (e) of the Rules of Procedure of the ECOSOC, UN Doc. E/5715/Rev.2.

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On the whole, the comparison suggests that Article VIII provides an independent 17 means of referring a relevant situation to an organ of the United Nations that cannot be found elsewhere in the UN Charter. 2. The relationship between Article VIII and the UN Charter One prominent criticism of Article VIII is that in imposing an obligation on UN 18 organs to take action as a result of a referral made by a state party, this provision could somehow interfere with the UN Charter system or induce an organ to act ultra vires. Particularly during the adoption process and in the Convention’s early years such concerns were articulated.32 From a contemporary perspective, the problem may seem less acute: While member states in 1948 were concerned about intrusive UN interference into the their domestic affairs, developments since 1948 have clarified that genocidal threats are proper matters for UN concern – in fact, if anything, UN action to combat them is desired and called for.33 Still, the fact remains that by virtue of a special treaty, separate from the UN 19 Charter, UN organs are vested with obligations and possibly competences. In principle, this could indeed give rise to concerns about ultra vires activities and the delimitation of UN competences. However, in the specific case of Article VIII; three arguments suggest that the problems, even in 1948, were perceived rather than real. First, while the preceding considerations have emphasised the relevance of Article VIII, which implies a need for some form of response on behalf of the UN, it is clear that UN organs retain a considerable measure of discretion in deciding about the specific course of conduct to be adopted. In shaping their ‘appropriate’ response, UN organs can ensure they act intra vires. Second, as a product of the UN codification movement, the Genocide Convention is presumed to be compatible with the UN’s founding document, viz. the Charter.34 The aims of the Convention stand in a close context to the object and purpose of the UN, namely to provide for worldwide peace and security.35 Preventing genocide is a highly relevant contribution to this purpose. While formally, separate, the two treaties complement each other and can be construed accordingly. Third, even if the Genocide Convention went beyond the Charter as interpreted in 1948, in elaborating and adopting (and thereby approving) the Genocide Convention, the UN General Assembly could be said to have developed the UN system.36 Its involvement in the drafting process can be seen as ‘subsequent practice’37 and is relevant for the purposes of Charter interpretation. In sum, Article VIII stands in a close interrelation to the UN 32

See the historic discussion and references to it in Robinson, Genocide Convention, 91–2. For documents calling for comprehensive UN involvement see infra, mns 33 et seq.; and further Introduction, mns 3 and 28. 34 For more on the interrelation between the UN Charter and other treaties, and on the role of Article 103 Charter, see Paulus/Leiß, in: Simma/Khan/Nolte/Paulus, Charter of the UN (3rd ed.), Article 103, mns 17–8. Pursuant to Article 31 para. 3 lit. (c) VCLT, treaty interpretation has to take account of the normative context of treaty provisions; this, too, facilitates the systematic integration of separate treaty rules. For brief comment see Introduction, mns 30–8. 35 See in general Wolfrum, in: Simma/Khan/Nolte/Paulus, Charter of the UN (3rd ed.), Article 1, mns 1–38. 36 For brief comment on the General Assembly’s role as a ‘Charter interpreter’ see Kadelbach, in: Simma/Khan/Nolte/Paulus, Charter of the UN (3rd ed.), Interpretation, mns 52–5. 37 See Introduction, mns 11–2. 33

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Charter. It complements Charter-based rights of initiative, but goes beyond them and thus retains its autonomous relevance.

II. Personal scope: ‘any contracting party’ 20 Article VIII provides a right of referral to ‘any contracting party’, in other words any state party to the Convention. First, it should be noted that in relation to Article VIII no specific link to an instance of genocide need be established before a referral can be made under this provision. In addition, the right of a contracting party to call upon the UN organs for assistance under Article VIII is not restricted to instances of genocide involving other contracting parties, but is competent to do so at any time. The broad application of this provision corresponds to the object and purpose of the Convention to prevent and punish any acts of genocide. Article VIII thus opens the door for a procedure similar to a (non-judicial) ‘actio popularis’. 21 That having been said, the right to invoke Article VIII to call upon UN organs for assistance is restricted to contracting parties to the Genocide Convention.38 Consequently, non-parties seeking to raise genocide-related issues before the UN are restricted to rights of referral recognised in the UN Charter. 22 Conversely, in the years after the adoption of the Convention it was discussed whether contracting parties to the Convention could invoke Article VIII despite not being UN member states.39 Providing such access to the UN for non-member states could be said to contravene the principle of pacta tertiis nec nocent nec prosunt. Whilst today this debate is only of esoteric interest due to near universal UN membership,40 in theory at least a situation could arise where a new state, for example, would become party to the Genocide Convention and not to the UN Charter (at least not at first).41 In this setting, it seems beyond doubt that parties to the Genocide Convention can ‘call upon’ UN organs pursuant to Article VIII even before they join the Organization. This would seem to follow from the ordinary meaning of Article VIII itself, which does not distinguish between UN members and UN non-members. Systematically, support can be derived from a comparison between Articles VIII and XI: while the former treats members and non-members alike, the latter stipulates that UN non-members must be invited to join the Genocide Convention regime.42 From the perspective of the UN, to preclude nonmembers from raising genocide-related matters before Charter organs does not seem to be required either. Not only are the Charter-specific procedures aimed to facilitate international peace and security, or dispute resolution, open to nonmembers.43 What is more, the UN, as per its Charter’s Article 1, aspires to be a 38

Kunz, AJIL 43 (1949), 746. Robinson, Genocide Convention, 94–5. 40 See Fastenrath, in: Simma/Khan/Nolte/Paulus, Charter of the UN (3rd ed.), Article 4, mns 9–10. 41 As it happened e. g. regarding UNESCO with Palestine on 31 October 2011, see http:// www.unesco.org/new/en/media-services/single-view/news/general_conference_admits_palestine_ as_unesco_member_state. 42 For details see Article XI, mns 8–9. 43 See notably Article 35 para. 2 UN Charter (recognising the right of ‘[a] state which is not a member of the United Nations may bring to the attention of the Security Council or of the General Assembly any dispute to which it is a party if it accepts in advance, for the purposes of the dispute, the obligations of pacific settlement provided in the present Charter’). For comment see Schweisfurth, in: Simma/Khan/Nolte/Paulus, Charter of the UN (3rd ed.), Article 35, mns 18–24. 39

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‘centre for harmonizing the actions of nations in the attainment of [the UN’s aims]’ and to that effect (as per Article 2, para. 6) is to ‘ensure that states which are not Members of the United Nations act in accordance with [its] Principles’. Finally, Article 102 para. 2 of the Charter is indicative: it provides that once a treaty has been registered with the UN Secretariat, it can be invoked before UN organs, without distinguishing between UN members and non-members.44 All this clarifies that the United Nations does not regard itself as a ‘closed shop’ but envisages the participation of non-member states in broad measure. In line with this, there is no reason at all to read Article VIII of the Genocide Convention restrictively. The right to ‘call upon’ UN organs is open to all parties to the Convention.

III. Substantive scope A number of significant legal issues arise in relation to the substantive scope of 23 Article VIII. Such legal issues relate to which are the ‘competent organs of the UN’, what ‘actions under the UN Charter’ are covered and what action is to be considered ‘appropriate’. 1. ‘competent organs of the UN’ In referring to the ‘competent organs of the UN’ Article VIII applies to all UN 24 organs, making no difference between them.45 The competence of an organ must be assessed on a case-by-case basis according to the functions of the organ under the UN Charter and in light of the object and purpose of the Convention. The notion of ‘organs’ refers to Article 7 UN Charter, which lists six principal organs (the GA, SC, ECOSOC, the Trusteeship Council, the ICJ46 and the Secretariat47) and, in paragraph 2, envisages the creation of subsidiary organs.48 As Article VIII of the Convention contains no restriction, the reference to ‘organs’ 25 could be read to cover principal as well as subsidiary organs. It could, read dynamically, even be construed to comprise subsidiary organs established after 1948. However, Article VIII only refers to organs that can take ‘action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III’. Put differently, the ‘competence’ of an organ must be based on the Charter. This is not true for subsidiary organs whose competence is based on the secondary act that establishes them, not on the (primary) Charter. Read properly, Article VIII thus only covers action by the principal organs. This does not mean that other organs could not take action against genocide: for some of them (such as the Human Rights Council, this is

44 The provision encourages registration of all treaties, irrespective of whether they are binding on member states or non-members, see Martens, in: Simma/Khan/Nolte/Paulus, Charter of the UN (3rd ed.), Article 102, mn. 19. The Genocide Convention was registered on 12 January 1951, see Article XIX, mns 3–4. 45 Although regarding the draft version limiting the competent organ to the SC, which was controversially discussed, supra, mn. 8. 46 See in particular on the ICJ infra, mn. 34. 47 The list is exhaustive: see Paulus/Lippold, in: Simma/Khan/Nolte/Paulus, Charter of the UN (3rd ed.), Article 7, mn. 8. 48 See further Articles 22, 29 UN Charter. Paulus/Lippold provide a useful list (in: Simma/Khan/ Nolte/Paulus, Charter of the UN (3rd ed.), Article 7, mn. 33).

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clearly an essential aspect of their mandate).49 However, their practice is not based on Article VIII, but on legal bases other than the Genocide Convention. 26 As regards the UN’s principal organs, any organ is ‘competent’ in the sense of Article VIII if it can act to prevent or address genocide. Such ability cannot be measured in the abstract. Rather, each situation must be assessed in order to determine whether, in light of the situation at hand, the organ in question is competent. For instance, if the reported situation urgently requires immediate action because acts of genocide are taking place, the SC with its Chapter VII powers would be the competent organ rather than an organ which only possesses the power to make recommendations such as the GA or ECOSOC. On the other hand, if an initial investigation into a situation was required, any organ with the ability to carry out such an investigation can be considered competent. 27 As it sometimes may not always be clear which organ is competent in a particular situation, it is suggested that the requirements that determine competence must not be construed narrowly but leave sufficient flexibility. It is suggested that a state is entitled to specify which organ it believes to be competent at the time of the referral – or indeed to call upon more than one organ simultaneously. If subsequently it transpires that another organ is better placed to carry out the task, the matter can always be referred to it. As long as an organ is not obviously incompetent, it may not ignore a call by a member state. 2. Subsequent practice regarding the competence of UN organs 28

In line with the preceding considerations, action in the sense of Article VIII has been taken by a range of different UN (principal) organs, both in response to calls by member states and proprio motu. The GA has on a number of occasions taken action to engage with the crime of genocide since the coming into force of the Convention.50 For instance, the GA has been host to discussions of alleged instances of genocide in Tibet,51 Iraq in 196352 and (more prominently) Lebanon in 1982.53 Furthermore, the GA has adopted resolutions on the events in Former Yugoslavia, Rwanda54 and Cambodia.55 Such practice in conjunction with the involvement of the GA in the development of the Responsibility to Protect doctrine and the 49

See further Introduction, mns 3, 28. For instance, in 1992 the GA adopted the ‘Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities’ which relates to the crime of genocide in a number of ways. UN Doc. A/RES/47/135 (18 December 1992); Schabas, Genocide in Int’l Law (2nd ed.), 542. 51 China was accused in the GA of having committed genocide in Tibet by Cuba (UN Doc. A/ PV.831, para. 126), El Salvador (UN Doc. A/PV.812, para. 127, and A/PV.833, para. 8), Malaya (UN Doc. A/PV.831) and the Netherlands (UN Doc. A/PV.833, para. 28). 52 Iraq was accused in the GA of having committed genocide against the Kurds by Mongolia (UN Doc. A/5429). 53 Israel was accused in the GA of having committed genocide against Palestinian refugees in the Lebanese Sabra and Shatila refugee camps by Cuba (UN Doc. A/37/L.52, add. 1 and A/37/PV.108, para. 58), the German Democratic Republic (UN Doc. A/37/PV.92), Nicaragua (UN Doc. A/37/ PV.96), Madagascar (UN Doc. A/37/489, annex), Mongolia (UN Doc. A/37/480, annex), Vietnam (UN Doc. A/37/489, annex) and Pakistan (UN Doc. A/37/502, annex). See on individual criminal proceedings before Belgian courts Article IV, mn. 58. 54 For detailed references see Schabas, Genocide in Int’l Law (2nd ed.), 543. 55 UN Doc. A/RES/52/135; Schabas, Genocide in Int’l Law (2nd ed.), 544. 50

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establishment of Action Plan to Prevent Genocide in 200456 strongly suggest that the GA could be considered competent for the purposes of Article VIII. The SC has also dealt with instances of genocide on several occasions.57 The SC’s first involvement with genocide came in 1982 with the situation in the Lebanese refugee camps of Sabra and Shatila;58 but its most prominent engagement was related to the genocide in Bosnia and Herzegovina in 1993.59 The SC first adopted a resolution on the prevention of genocide during the break up of Yugoslavia60 before creating the International Criminal Tribunal for the Former Yugoslavia through a Chapter VII resolution with explicit jurisdiction over the crime of genocide.61 Unfortunately, despite taking proactive steps in relation to the situation in the former Yugoslavia, the SC failed to take action to prevent or put a stop to genocide in Rwanda in 1994.62 However, the SC’s failure to act in this case was in no way due to any perception that it lacked authority in any way but rather a veto by permanent members.63 The SC has subsequently adopted several resolutions on the situation in Rwanda, Burundi and Darfur explicitly referring to the prevention of genocide.64 Such practice and the extremely broad authority the SC possesses under Chapter VII clarifies (if clarification were needed) that the SC can be considered a competent organ for the purposes of Article VIII. Whilst the role of other UN organs has been limited in relation to subsequent practice, some consideration of their operation in necessary and sheds further light on what organs can be considered competent for the purposes of Article VIII. Since playing an instrumental role in the drafting of the Genocide Convention,65 the ECOSOC has more than once been ‘the focal point of much activity concerning genocide’.66 Although it was not directly addressed by a member state, in 1967 following a call by the Sub-Commission on the Promotion and Protection of Human Rights, the ECOSOC prepared a report on genocide.67 Even though the report was for internal disputes not concluded until 1985,68 the competence of the ECOSOC on genocide cannot be denied. Moreover, its powers are formulated in 56

Infra, mn. 52. Schabas, Genocide in Int’l Law (2nd ed.), 546–55. 58 Initiated by the Soviet Union (UN Doc. S/15419) and supported by Surinam (UN Doc. S/ 15406); see also supra fn. 53; see further on the incident Malone, The Kahan Report, passim. 59 Schabas, Genocide in Int’l Law (2nd ed.), 546. 60 UN Doc. S/RES/819 (16 April 1993). 61 UN Doc. S/RES/827 (8 May 1993). 62 For details Gru ¨ nfeld/Huijboom, Failure to prevent Genocide in Rwanda, 199–217; Melvern, JIntCrimJust 3 (2005), 847; Schabas, Genocide in Int’l Law (2nd ed.), 547–9. 63 Melvern, JIntCrimJust 3 (2005), 847, 854–6; Schabas, Genocide in Int’l Law (2nd ed.), 547–8. Only after the massacres had reached their peak, on 8 June 1994, the SC recognised the situation as genocide and then authorised an intervention two weeks later. Schabas, Genocide in Int’l Law (2nd ed.), 550. 64 UN Docs S/RES/978, S/RES/1011, S/RES/1029 (all on Rwanda), S/RES1012 and S/RES/1161 (both on Burundi); UN Doc. S/RES/1366 (30 August 2001), emphasis as original; see also the comment on the later implementation of the Special Adviser on the Prevention of Genocide, infra, mn. 52; Schabas, Genocide in Int’l Law (2nd ed.), 553–4. 65 GA Resolution 96 (I) addressed the ECOSOC directly. It then participated with its Ad Hoc Committee even in the drafting process of the Convention and thus proved its general competence on genocide issues. 66 Schabas, Genocide in Int’l Law (2nd ed.), 555. 67 Schabas, Genocide in Int’l Law (2nd ed.), 555 (there fn. 169). 68 In details Schabas, Genocide in Int’l Law (2nd ed.), 555–7. 57

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Articles 62 to 66 of the UN Charter so that the ECOSOC is also able to act upon calls according to the Charter. There is no reason to exclude the ECOSOC from the list of competent UN organs according to Article VIII. 33 Another principal organ that has dealt with issues relating to genocide is the Secretariat.69 In providing logistical support for the entire Organization the Secretariat is indirectly involved whenever any member of UN staff is in charge of monitoring or engaging with an instance of genocide such as in Yugoslavia, Rwanda and Darfur.70 However, aside from logistical and organizational support for other organs, the Secretariat has not been directly called upon by states under Article VIII and likewise there is no procedure for referral of a situation to the Secretariat in the UN Charter. As such, the Secretariat cannot be considered a competent organ for the purposes of Article VIII; it gets involved in cooperation with actions by other organs. 34 A further principal organ of the UN, the ICJ, is potentially significant for the operation of the Genocide Convention. The Court’s role is addressed in Article IX of the Convention specifically and more generally circumscribed by its Statute and the ICJ-related provisions of the Charter. As is noted elsewhere,71 these envisage contentious inter-state proceedings and permit Charter organs (but not member states) to make use of the ICJ’s advisory role.72 All this is possible irrespective of Article VIII. It could be asked, though, whether Article VIII could provide an autonomous basis for ICJ action. In its provisional measures order in the Bosnian Genocide case, the Court briefly considered the matter when noting: ‘… Article VIII, even assuming it to be applicable to the Court as one of the ‘competent organs of the United Nations’, appears not to confer on it any functions or competence additional to those provided for in its Statute ….’73

This seems to suggest that Article VIII does not add to (nor diminish from) to the Court’s competences as defined by Article IX. For the scope of the Court’s competences, it is irrelevant.74 3. ‘actions under the UN Charter’ Upon receiving a referral from a contracting party a competent UN organ has the discretion to take ‘actions under the Charter of the United Nations’.75 As such, the range of possible action that can be taken by competent organs is limited to those powers it possesses under the UN Charter.76 36 For the General Assembly, this means that its response to genocide will typically not involve the imposition of legal obligations or measures of coercion. Its powers are mainly political;77 they include a general competence to discuss questions of 35

69

Schabas, Genocide in Int’l Law (2nd ed.), 571–3. See further Chesterman, in: Simma/Khan/Nolte/Paulus, Charter of the UN (3rd ed.), Article 97, mns 6–8; see further details and references in Schabas, Genocide in Int’l Law (2nd ed.), 572–3. 71 See Article IX, mns 1, 18–49. 72 Oellers-Frahm, in: Simma/Khan/Nolte/Paulus, Charter of the UN (3rd ed.), Article 96, mns 14–21. 73 ICJ Reports 1993, 23 (para. 47). 74 Lippman, HousJIntL 23 (2000–2001), 512. 75 Supra, mn. 13. 76 In the case of the GA, Articles 10 to 17 UN Charter, for the SC, Articles 24 to 26 (combined with Chapters VI, VII, VIII and XII) UN Charter, for ECOSOC, Articles 62 to 66 UN Charter. 77 Peterson, in: Oxford Handbook on the UN, 97–116. 70

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international concern (including those related to genocide)78 and to recommend a particular course of action.79 As per Article 22, this can include the creation of subsidiary organs mandated to address questions relating to genocide. Outside specific crisis situations, the GA’s power to initiate studies or make recommendations as set out in Article 13 UN Charter80 and its specific competence with respect to human rights recognised in Articles 55 and 56 may provide a basis for action. The effectiveness of such action, however, depends on the political will and cooperation of member states. The SC, in contrast, has real operational powers and can impose coercive 37 measures.81 As it is primarily responsible for the maintenance of peace and security,82 it is in a position to ensure compliance with the Convention in situations of crisis. While its Chapter VI powers are recommendatory, under Chapter VII of the Charter, the Council can impose a wide range of sanctions if it has determined genocidal violence to amount to a ‘threat to the peace’ in the sense of Article 39 UN Charter.83 This determination depends on the political will of the SC members, and must be carried by the votes (or at least not attract vetoes) of the SC’s five permanent members. However, where such political will is mustered, ‘genocide, whether imminent or ongoing, practically always … [will be considered] a threat to the peace’.84 This opens up the way for a wide range of military and non-military sanctions under Articles 41 and 42 UN Charter, but also enables the Council to condemn a situation or to install commissions for investigation purposes.85 The powers of the ECOSOC are, similar to those of the GA, of a political 38 nature.86 As vested by Articles 62 to 66 of the UN Charter, it can make or initiate studies, make reports and give recommendations.87 Doing so, its functions appear complementary to those of the GA.88 That is why, generally speaking, a distinction between the GA and the ECOSOC to identify the ‘more competent’ organ is not easy; and it will generally be up to states to choose which they intend to ‘call upon’. On that basis, given its diminished role, ECOSOC may not be the first port of call; especially since special procedures created by the Human Rights Commission (a subsidiary organ of ECOSOC) have been transferred to the Human Rights Council (established by the GA). However, historically, it has played a considerable role, as the above discussion indicates.89

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Klein/Schmahl, in: Simma/Khan/Nolte/Paulus, Charter of the UN (3rd ed.), Article 10, mns 4–20. Klein/Schmahl, in: Simma/Khan/Nolte/Paulus, Charter of the UN (3rd ed.), Article 10, mns 12–41. 80 See also on the broad interpretation of Article 13 of the UN Charter Fleischhauer/Simma, in: Simma/Khan/Nolte/Paulus, Charter of the UN (3rd ed.), Article 13, mns 1–6. 81 Malone, in: Oxford Handbook on the UN, 117–35. 82 Peters, in: Simma/Khan/Nolte/Paulus, Charter of the UN (3rd ed.), Article 24, mns 33–4. 83 That it can interpret the notion of ‘threat to peace’ in such a way today seems undisputed, see Gaja, in: Gaeta, Genocide Convention, 402. 84 As put by Kofi Annan in his Stockholm Proposals, 2. 85 See for details Schabas, Genocide in Int’l Law (2nd ed.), 553. 86 Rosenthal, in: Oxford Handbook on the UN, 136–48. 87 Ro ¨ ben, in: Simma/Khan/Nolte/Paulus, Charter of the UN (3rd ed.), Article 62, mns 10–24. 88 Rosenthal, in: Oxford Handbook on the UN, 138. 89 Supra, mn. 32. 79

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4. ‘they consider appropriate’ While Article VIII entitles contracting parties to ‘call upon’ competent organs of the UN, the action to be taken is the one ‘they consider appropriate’. This formulation raises a number of important legal issues that require further examination, including who exactly ‘they’ refers to and what exactly ‘consider appropriate’ in this context means. As regards the first issue, the term ‘they’ used in the English version might not only refer to the UN organs, but include the member state referring the matter. However, as the French language version, which uses ‘ceux-ci’, clarifies, the reference is to the UN organs only. These alone are (or rather: the requested organ alone is) thus to consider ‘appropriate measures’. This does not mean that the referring state requesting action had to remain entirely passive. It can suggest measures it considers appropriate; and indeed such suggestions from states involved with or close to the situation at hand as to the best course of action are of potentially great value to competent UN organs. 40 Whilst, as demonstrated above, Article VIII confers a right on the referring state to have the issue placed on the agenda of a competent organ of the UN and to receive some form of response,90 crucially it does not confer any right to insist on a particular course of action. By providing that competent UN organs may take whatever action ‘they consider appropriate’ they are afforded considerable discretion as to whether to take action, and if so, what kind of action they wish to take. What is more, if the response falls short of the referring state’s hopes (or even if there is no response at all), hard and fast enforcement mechanisms are not readily available.91 All this of course is a central weakness and the reason for a good deal of the criticism of Article VIII as providing an incomplete system for the prevention and punishment of the crime of genocide.92 As will be shown below,93 the more recent UN debates around the notion of a ‘Responsibility to Protect’ – developed outside Article VIII – have indeed sought to establish proper, specific obligation of the international community to prevent mass atrocities such as genocide. 41 Yet even the existence of a more limited duty to respond in some way, recognised in Article VIII, should not be dismissed completely. For once, debates about ‘R2P’ may very well have drawn inspiration from provisions like Article VIII, which at least provided some normative foothold for the idea of a UN responsibility for the prevention of genocide. Beyond that, for UN organs to be obliged to react in some form, has – potentially important – political implication that could very well affect the substance of the response. A requested organ needs to place the referred matter on its agenda and it has to engage with it, which will typically require a discussion in which the referring state can participate. Even if the requested organ decides not to act, it can only do so following a discussion. This in itself may prove important for the broader international response, at least in ‘referral cases’ commanding public attention. Because of the involvement of a UN organ, other states and institutions regularly become aware of the referred issue. Second, being forced to respond somehow may increase the political pressure to issue a convincing reaction 39

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Supra, mns 13, 19. To consider just two examples, contentious ICJ proceedings cannot be instituted against UN organs, while the UN’s internal justice system is not open to states. 92 Supra, fn. 18 and 19. 93 Infra, mns 52-55. 91

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that is ‘appropriate’ to the referred situation. At least in the post-Rwanda and postSrebrenica climate, where the UN can be considered to be genuine in its commitment to genocide prevention, the increase in political pressure that Article VIII could entail might very well be relevant. Credible allegations of genocide will unlike to be simply ignored; and they might tip the scale in favour of a more intrusive response.

IV. Procedure No formal procedure for referral by contracting parties is set out in Article VIII 42 or anywhere else in the Genocide Convention. As regards the procedure to be followed by the requested UN organ, the respective Rules of Procedure regulate how to deal with the referral. Apart from stipulating the process of handling referrals, these Rules also enable referring states to gauge how much time will lapse before their request is actually addressed. Whereas the SC is always on duty,94 the GA meets generally on for annual sessions only.95 Emergency special sessions can be convened within 24 hours and in cases of alleged genocide, might in fact well be convened; however, they need to be; ‘requested by the Security Council … or by a majority of the Members of the United Nations’, which so far has only happened ten times.96 ECOSOC, lastly, meets ‘as required’ according to Article 72 para. 2 UN Charter.97 Pursuant to its Rules of Procedure, its holds two sessions a year, but additional special sessions are possible.98 While much will depend on the type of action requested, in light of these considerations, the SC appears to be the fastest and most effective organ to be called upon. Unless a motion for an emergency special session is considered, the GA, outside its regular sessions, is unlikely to be able to respond swiftly. As regards the referral by the contracting party, the first (perhaps obvious) point 43 to make is that Article VIII grants a right. Contracting parties that are in some way involved (e. g. as victim states of genocidal violence) or have knowledge of the commission of genocide can make a referral under Article VIII, but are not under a duty to do so. The failure to refer a matter to the UN thus does not amount to a breach of the Genocide Convention.99 With respect to the form of requests, the various Rules of Procedure – as well as 44 the subsequent UN practice – provide at least some guidance. The only UN organs to which any mention regarding referral is made in the UN Charter are the GA and the SC in Article 35. Neither the Charter itself nor the Rules of Procedure of either organ make any reference to procedural requirements in terms of referrals. However, consistent practice has revealed that formal written communication is required when making such a referral.100 94

Bu¨hler, in: Simma/Khan/Nolte/Paulus, Charter of the UN (3rd ed.), Article 28, mns 9, 23. Schweisfurth, in: Simma/Khan/Nolte/Paulus, Charter of the UN (3rd ed.), Article 35, mn. 6. 96 See GA Res 377(V) (‘Uniting for Peace’), which ‘invented’ the procedure to be able to deal with matters of international peace and security in the case of a Security Council blockade. In the Wall opinion, the ICJ emphasised the GA’s discretion in determining whether these conditions are met: see ICJ Reports 2004, 161, paras 28–35. 97 Chaitidou, in: Simma/Khan/Nolte/Paulus, Charter of the UN (3rd ed.), Article 72, mn. 5. 98 Chaitidou, in: Simma/Khan/Nolte/Paulus, Charter of the UN (3rd ed.), Article 72, mns 10–14. 99 Robinson, Genocide Convention, 96. 100 Schweisfurth, in: Simma/Khan/Nolte/Paulus, Charter of the UN (3rd ed.), Article 35, mn. 25. 95

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Similarly, subsequent practice has shown that when making a referral to the GA or SC, no detailed substantiation of the motivations of the referring state is required and it is most probably the case that the situation is the same with regard to referrals made under Article VIII of the Genocide Convention.101 From a practical point of view, however, a well substantiated letter of referral can have great influence on the decision of the competent organ to take action. Finally, the referring state has the option of addressing their referral to a specific UN organ (bearing in mind the availability of each organ102) or to the Secretary General if more than one organ is potentially competent.103

D. Subsequent developments 46 Article VIII is the only explicit substantial linkage104 between the Genocide Convention and the UN as an actor against genocide. Although the drafters of the Convention did not impose upon the UN a separate, self-standing duty to prevent and suppress genocide, Article VIII involved the Organization in the fight against genocide. Adopted as early as 1948, the provision can be considered, with the benefit of hindsight, to have been the first step towards an institutional commitment to fight genocide. Although state parties remain primarily responsible for measures against genocide, an institutional framework for an effective compliance of the conventional aims is indispensable. Beginning with Article VIII, the UN has progressively taken the lead in genocide prevention and suppression – driven, but not obliged to, by the Genocide Convention. 47 When the Genocide Convention was adopted, a duty for international organisations (and more specifically the UN) to prevent and suppress genocide did not exist. Today, however, the UN accepts that it is required to prevent genocide and in fact sees this as one of its core missions.105 Such a development has undoubtedly been aided by the link created between states and the UN by Article VIII of the Convention. 48 However the failure of the UN as a whole to intervene to bring a stop to the Rwandan genocide at the start of the 1990s exposed the limits of the referral system whereby the initiative lay with states themselves.106 Until then Article VIII was (at least impliedly) applied several times and some form of meaningful interaction between states and the UN in achieving the aims of the Convention seemed plausible.107 This perception was shattered by the failure of the international community regarding the Rwandan Genocide and crucially since then a number of steps have been taken to strengthen the institutional system in order to combat 101 See for further references Schweisfurth, in: Simma/Khan/Nolte/Paulus, Charter of the UN (3rd ed.), Article 35, mn. 25. Similarly, no formal requirements can be discerned regarding referral to ECOSOC, of which Article VIII Genocide Convention is the only means of state referral since no procedure is contained in the UN Charter. 102 Bu ¨ hler, in: Simma/Khan/Nolte/Paulus, Charter of the UN (3rd ed.), Article 28, mns 9, 23. 103 Schweisfurth, in: Simma/Khan/Nolte/Paulus, Charter of the UN (3rd ed.), Article 35, mn. 25 (last sentence). 104 Mere references to the UN can be found also in the preamble as well as in the rather technical Articles XI to XIV and XVII to XIX. 105 Gaja, in: Gaeta, Genocide Convention, 405; see also Introduction, mns 56–8. 106 See on this Gru ¨ nfeld/Huijboom, Failure to prevent Genocide in Rwanda, passim. 107 Supra, mns 28-34.

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the crime of genocide. As such, the remarkable subsequent practice regarding Article VIII falls to be examined.

I. International Convention on the Suppression and Punishment of the Crime of Apartheid (1973) The impact of Article VIII on international treaty-making is clear, first of all, 49 from a perusal of subsequent treaty norms. Among these, Article VIII of the International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted in 1973, is almost108 identical: ‘Any State Party to the present Convention may call upon any competent organ of the United Nations to take such action under the Charter of the United Nations as it considers appropriate for the prevention and suppression of the crime of apartheid’.109.

The Anti-Apartheid Convention entered into force in 1976 and remains valid. The fact that its Article VIII, adopted more than 25 years later, effectively duplicates Article VIII of the Genocide Convention is significant and suggests that the approach adopted in the Genocide Convention was not considered meaningless.110 Even at a time when genocide was not an issue of major international consideration, Article VIII of the Genocide Convention thus proved to be a blueprint for subsequent treaties on related issues.

II. International criminal law The development of international criminal law after the end of the Cold War has 50 brought a significant number of developments regarding the crime of genocide. The statutes of both the ICTY and ICTR tribunals included genocide as a crime under their jurisdiction. Both SC resolutions could be (at least partly and indirectly) attributed to prior state referrals to UN organs.111 Article VIII thus did play a role in the evolution of international criminal justice. Furthermore, in the subsequent establishment of the International Criminal 51 Court, which also has jurisdiction over the crime of genocide, the legacy of Article VIII of the Genocide Convention becomes visible.112 To elaborate, the drafting history of the ICC Statute shows that the ability for state parties under Article 14 para. 1 to refer a situation to the prosecutor of the ICC was inspired by Article VIII of the Genocide Convention.113 The first ILC draft of the ICC Statute of 1994 stated in its Article 25 para. 1:

108 Only the use of the singular for ‘Party’ and ‘it considers’ is less identical than in the ‘original’ version of the Genocide Convention. 109 Emphasis as original. 110 Schabas, Genocide in Int’l Law (2nd ed.), 538. 111 At least in the Rwandan situation, early warnings addressed to UN organs by both states (Belgium) and UN officials were numerous, see e. g. Gru¨nfeld/Huijboom, Failure to prevent Genocide in Rwanda, 95–103, 127–39. 112 Article 14 para. 1 ICC Statute reads as follows: ‘A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.’ 113 See also Marchesi, in: Triffterer, ICC Statute (2nd ed.), Article 14, mn. 2.

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‘A State Party which is also a Contracting Party to the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 may lodge a complaint with the Prosecutor alleging that a crime of genocide appears to have been committed.’114

As such, only states that were party to both the Genocide Convention and the ICC Statute would have been competent to make referrals to the ICC prosecutor under Article 25. However, it is suggested that subsequent practice under Article VIII of the Genocide Convention referred to in the Draft Statute adopted by the ICC Preparatory Committee of April 1998115 influenced the move away from a strict link to the Genocide Convention. States that were not party to the Genocide Convention have been enabled to make referrals to the Prosecutor, as is the case in the current ICC Statute. But the spirit of Article VIII still lives in Article 14 of the ICC Stature. It can hardly be disputed that Article VIII served as a blueprint for its sister provision vis-a`-vis the ICC.

III. UN initiatives on genocide prevention and ‘Responsibility to Protect’ 52 Only a few years later, during Kofi Annan’s term of office as Secretary-General, the UN took decisive steps towards a more active role in the fight against genocide. On 20 August 2001, the SC adopted its Resolution 1366 in which it confirmed the importance of the fight against genocide in the framework of conflict prevention.116 Secretary-General Annan made use of this resolution and worked towards a deeper institutional commitment to prevent and supress genocide, which eventually was presented in the Action Plan to Prevent Genocide of April 2004.117 Subsequently, in a letter to the President of the SC of 12 July 2004, Kofi Annan outlined the mandate for the Special Advisor on the Prevention of Genocide.118 His or her responsibilities are to: ‘(a) collect existing information, in particular from within the United Nations system, on massive and serious violations of human rights and international humanitarian law of ethnic and racial origin that, if not prevented or halted, might lead to genocide; (b) act as a mechanism of early warning to the Secretary-General, and through him to the Security Council, by bringing to their attention potential situations that could result in genocide; (c) make recommendations to the Security Council, through the Secretary-General, on actions to prevent or halt genocide; (d) liaise with the United Nations system on activities for the prevention of genocide and work to enhance the United Nations capacity to analyse and manage information relating to genocide or related crimes.’119

53

With the establishment of the office of a Special Advisor the UN has documented and started to perform its duty to play an active role in the prevention and suppression of genocide.120 From 3 May 2006, this work was supported by a newly-created Advisory Committee.121 As the UN has pointed out, the Genocide 114

Report of the ILC on the work of its forty-sixth session, YbILC 1994, vol. II, part 2, 45. See also Marchesi, in: Triffterer, ICC Statute (2nd ed.), Article 14, mn. 4. 116 UN Doc. S/RES/1366 (2001), 2 (preambular paras 17 and 18). 117 UN Press Release, archived on http://www.preventgenocide.org/prevent/UNdocs/KofiAnnansActionPlantoPreventGenocide7Apr2004.htm#links. 118 UN Doc. S/2004/567. 119 UN Doc. S/2004/567, 2 (para. 5). 120 Schabas, Genocide in Int’l Law (2nd ed.), 545; see on the work of the Special Advisor http:// www.un.org/en/preventgenocide/adviser/country_situations.shtml. 121 UN Doc. SG/A/1000, http://www.un.org/News/Press/docs/2006/sga1000.doc.htm. 115

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Convention is one and the first of the three key features of the legal framework visa`-vis the Office of the Special Advisor on the Prevention of Genocide.122 These subsequent developments complement, rather than replace, Article VIII. 54 Even though the institutional machinery has been developed, Article VIII referrals remain an option – for treaty parties to raise awareness for threats of genocide, and for the UN to engage with them on an autonomous (treaty) basis. Even after the establishment of the office of the Special Adviser, the cooperation 55 between states and the UN in the fight against genocide has continued to evolve. Through GA Resolution 60/1, the outcome document of the UN World Summit 2005, the UN recognised the concept of Responsibility to Protect.123 It includes genocide prevention124 and strengthens the political legitimacy of the Special Advisor on the Prevention of Genocide.125 Vis-a`-vis genocide, the concept of Responsibility to Protect signifies, in the words of the Special Advisor the following: ‘1. The State carries the primary responsibility for protecting populations from genocide, war crimes, crimes against humanity and ethnic cleansing, and their incitement; 2. The international community has a responsibility to encourage and assist States in fulfilling this responsibility; 3. The international community has a responsibility to use appropriate diplomatic, humanitarian and other means to protect populations from these crimes. If a State is manifestly failing to protect its populations, the international community must be prepared to take collective action to protect populations, in accordance with the Charter of the United Nations.’126

These features reflect the international cooperation in the fight against genocide as it was initiated by the Genocide Convention. They confirm that states are primarily called upon to prevent and suppress genocide, but that both states and UN are under a shared duty to contribute in every possible way to the attainment of this goal. The concept of Responsibility to Protect imposes obligations on both states and the UN. It does not, though, expressly comprise a right of every state to call upon the UN if support is needed in the fight against genocide. In this regard, Article VIII retains its function in the developing system of anti-genocide cooperation.127

IV. Further recent developments One of the most recent developments was the establishment of the UN Human 56 Rights Council.128 Created by GA Resolution 60/251 of 3 April 2006,129 it replaced the former Commission on Human Rights and is ‘responsible for promoting 122 http://www.un.org/en/preventgenocide/adviser/mandate.shtml: ‘… the legal framework for the work of the Office on Genocide Prevention and the Responsibility to Protect is drawn from: The Convention on the Prevention and Punishment of the Crime of Genocide; The wider body of international human rights law, international humanitarian law, and international criminal law; Relevant resolutions of the General Assembly, the Security Council and the Human Rights Council, including the 2005 World Summit Outcome Document.’ 123 Vashakmadze, in: Simma/Khan/Nolte/Paulus, Charter of the UN (3rd ed.), Annex on Responsibility to Protect after Article 38, mns 1–82. 124 UN Doc. A/RES/60/1, paras 138–9. 125 UN Doc. A/RES/60/1, para. 140 126 http://www.un.org/en/preventgenocide/adviser/responsibility.shtml. 127 See also Vashakmadze, in: Simma/Khan/Nolte/Paulus, Charter of the UN (3rd ed.), Annex on Responsibility to Protect after Article 38, mn. 57. 128 Ramcharan, in: Oxford Handbook on the UN, 450–1. 129 UN Doc. A/RES/60/251.

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universal respect for the protection of all human rights’.130 As the prevention of genocide is also a matter of human rights, the Human Rights Council can be regarded as another monitoring body competent to address questions of genocide. The Council itself is very aware of this role and has become actively involved in the fight against genocide.131 Although politically not undisputed,132 the Human Rights Council forms another string in the now well developed network of cooperational genocide prevention between states and the UN and thus complements the ideas expressed by Article VIII. 57 In the now developed framework of genocide prevention, Article VIII retains an important place. State referrals remain a potentially important tool of genocide prevention as states are best placed to determine whether a certain situation calls for an institutional response. This function is proved even by the most recent development of treaty making. A good example is the Arms Trade Treaty of 27 March 2013.133 This treaty, pursuant to its Article 1, aims at establishing ‘the highest possible common international standards for regulating or improving the regulation of the international trade in conventional arms’ and preventing and eradicating ‘the illicit trade in conventional arms and prevent their diversion.’ Its Article 6 para. 3 stipulates that: ‘[a] State Party shall not authorize any transfer of conventional arms … if it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, ….’

This passage has twofold relevance for Article VIII of the Genocide Convention. First, it clarifies that the transfer of arms to a genocide situation constitutes a genocide situation itself and may thus be subject of a state referral according to Article VIII. Second, the Arms Trade Treaty itself does not provide for its own provision on state referrals. Parties to the treaty are indeed ‘encouraged’ to pursue international cooperation (Article 15) and may request ‘international assistance’ (Article 16). But this is only of technical nature and covers controls of the arms transfer. If a transfer has already happened, however, states have to rely on other provisions to call upon the UN regarding that issue. For treaties like the Arms Trade Treaty, which themselves refer to genocide, Article VIII is a complementary option also to foster treaty compliance beyond the mechanisms provided by the respective treaty.

E. Concluding observations 58 Despite frequent criticism, Article VIII is more than a merely declaratory provision of the Genocide Convention. It has foreshadowed the development of the contemporary international law system on the prevention and punishment of genocide based on cooperation between states and the UN. In fact, Article VIII can be seen as an important inspiration for the now well developed and accepted UN obligation to prevent and suppress genocide. Conversely, the recognition of such a 130

UN Doc. A/RES/60/251, 2 (paras 1 and 2). See e. g. HRC Res. 7/25 and 22/22 (both putting forward comprehensive agendas for genocide prevention) and further the information at http://www.ohchr.org/EN/Issues/RuleOfLaw/Pages/ PreventionGenocide.aspx. 132 For its composition including states not completely providing for a decent human rights standard by their own see Ramcharan, in: Oxford Handbook on the UN, 451. 133 UN Doc. A/CONF.217/2013/L.3. 131

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duty goes some way towards addressing the weaknesses of Article VIII, which did not place specific obligations on the UN. Within the framework of the Convention, the possibility of referral envisaged in 59 Article VIII is part of the broader normative agenda aimed at ensuring the prevention of genocide. Within that agenda, the duty of states to prevent genocide, as set out in Article I, is the lynchpin of the system. As the ICJ emphasised in its Bosnian Genocide judgment, the duty to prevent ‘has its own scope, which extends beyond the particular case envisaged in Article VIII, namely reference to the competent organs of the United Nations, for them to take such action as they deem appropriate. Even if and when these organs have been called upon, this does not mean that the States parties to the Convention are relieved of the obligation to take such action as they can to prevent genocide from occurring, while respecting the United Nations Charter and any decisions that may have been taken by its competent organs.’134

Still, while not ‘absorbing’ the duty to prevent, Article VIII plays an important supporting role. This, too, was emphasised by the ICJ: ‘The remaining specific provision, Article VIII about competent organs of the United Nations taking action, may be seen as completing the system by supporting both prevention and suppression, in this case at the political level rather than as a matter of legal responsibility.’135

Despite the harsh criticisms Article VIII has been exposed to, and its partly 60 political function, a future reform appears not to be urgent. The meaning of the provision can well be assessed by the common means of interpretation. Admittedly, on some aspects (like e. g. the notion of ‘competent UN organs’) some further normative guidance would have been desirable. But on the whole, no reform is needed. This is particularly true since the recently established (and hopefully to be extended) mechanisms of genocide prevention adopted within the UN systems outweigh some of the deficits of Article VIII. 134 135

ICJ Reports 2007, 220 (para. 427). ICJ Reports 2007, 109 (para. 159).

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Article IX 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. Table of Contents: A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. General features of ICJ proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Access to the court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Fundamental aspects of proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Interim proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Specific features of Article IX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Disputes ‘shall be submitted … at the request of any of the parties to the dispute’ ............................................................. 2. Disputes ‘between the Contracting Parties’ . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Disputes ‘relating to the interpretation, application or fulfilment of the present Convention’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. No further preconditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. The outcome of ICJ proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D. Concluding observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

mn. 1 11 17 18 19 23 26 33 35 36 37 43 48 50 55

Annex to Article IX: Reservations to the Convention:. . . . . . . . . . . . . . . . . . . . . . . . . 56 A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 B. Background: the general regime of reservations . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 I. The ICJ’s Reservations opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 II. The contemporary regime. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 1. Distinguishing reservations from related statements. . . . . . . . . . . . . . . . . 62 2. Permissible and impermissible reservations; the ‘compatibility test’ 64 3. Effects of permissible reservations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 4. Effects of impermissible reservations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 5. Procedural matters; withdrawal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 C. Assessing reservations made in respect of the Genocide Convention . . 80 I. Distinguishing reservations from other unilateral statements . . . . . . . . 81 II. Assessing reservations proper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 1. No general prohibition against reservations. . . . . . . . . . . . . . . . . . . . . . . . . . . 87 2. Compatibility of selected reservations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 a. Reservations seeking to exclude or modify ICJ dispute settlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 b. Reservations seeking to protect the domestic legal order . . . . . . . . 101 3. Legal effects of reservations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 III. Withdrawal of reservations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 D. Concluding observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

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Article IX 1–3 A. Introduction 1 Article IX is a central – although perhaps not one of the most important1 – provisions of the Convention. It enables states to have recourse to the International Court of Justice (ICJ) – the UN’s ‘principal judicial organ’2 – to settle disputes relating to the interpretation, application or fulfilment of the Genocide Convention. Through Article IX, state parties to the Convention can make use of the ICJ as an agency of settling inter-state disputes relating to genocide. Submission of disputes to the ICJ is one particular form of seeking the UN’s involvement in disputes about genocide; and Article IX can be seen as a special modality for the UN to take action (as Article VIII puts it) ‘for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III’. However, ICJ proceedings are a highly specific form of UN action against genocide, they follow a particular logic (that of binding judicial dispute settlement according to law), hence in practice, Article IX operates quite autonomously from Article VIII. 2 For one state party to accuse another of having breached the Genocide Convention inevitably is a highly charged matter, and the public character of the Court’s oral hearings only adds to this. (‘Court hears Balkans Genocide Case’ was one of the BBC’s main headlines on the opening day of the proceedings in the (Bosnian) Genocide case opposing Bosnia and Herzegovina on the one hand, and Serbia and Montenegro on the other.3) Because of the status and prestige of the ICJ, Article IX enhances the prospects of effectively enforcing the provisions of the Convention or at least raising awareness of violations. Seen from that perspective, Article IX can be said to ‘operationalise’ the quest for a world order based on law, in which major disputes (including those involving allegations of genocide) are submitted to an impartial forum for binding settlement according to legal standards.4 Yet recourse to the ICJ is no panacea. The ICJ is a court for inter-state disputes and it cannot impose criminal sanctions on individuals. ICJ proceedings are subject to procedural and jurisdictional rigours (to be explored below). They take time. Compliance may present a challenge. And states generally carefully weigh their options before instituting ICJ proceedings; they do not rush to the Court. All this limits the ICJ’s role as an ‘arbiter’ of disputes relating to genocide. Especially in on-going crises potentially involving acts of genocide, the ICJ – notwithstanding Article IX – is not able single-handedly to stop atrocities. But it is part of the international machinery for addressing disputes and it plays a role. That it can do so is due to Article IX. 3 From the ICJ’s perspective, Article IX is a highly relevant provision. As the Convention otherwise lacks a sophisticated, treaty-specific implementation scheme characteristic of other universal treaties protecting humanitarian values,5 Article IX has assumed major relevance as the key element of the Convention’s rudimentary enforcement system. In fact, it is the Convention’s only clause allowing state parties 1

Robinson, Genocide Convention, 100. Article 92 UN Charter. 3 See http://news.bbc.co.uk/2/hi/europe/4753874.stm (26 February 2006). 4 Kolb rightly notes that compromissory clauses like Article IX are attempts to ‘secure progress with respect to the ideal of “peace and justice through law”’: Kolb, Compromissory Clause, in: Gaeta, Genocide Convention, 413. 5 For more on this see Introduction, mn. 26. The diverse UN strategies for the prevention and suppression of genocide are addressed in the commentary to Article VIII. 2

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to seek binding and authoritative pronouncements on questions relating to genocide. The Court’s jurisdiction depends on the consent of states, and the inclusion, in a treaty, of a clause envisaging recourse to the ICJ is one of the most common ways of establishing such consent.6 That said, by no means do all universal treaties – let alone treaties touching upon politically sensitive matters – contain a so-called compromissory clause.7 For instance, the two UN Human Rights Covenants purposefully have none, and neither do the 1949 Geneva Conventions or their Optional Protocols. In fact, among the major universal law-making treaties setting out the international community’s basic humanitarian standards, compromissory clauses permitting recourse to the ICJ (like Article IX) are the exception. This makes Article IX a special clause.8 Curiously, it is easier to bring a state before the ICJ to investigate potential breaches of the Genocide Convention than war crimes or crimes against humanity. The previous comment may explain why, notwithstanding their general caution 4 in going to the Court, state parties have gradually begun to invoke Article IX and institute proceedings based on the Genocide Convention. To date, the provision has been invoked as the (sole or joint) basis of jurisdiction in fourteen cases,9 ten of which however were largely identical in scope. The subsequent paragraphs set out essential aspects of these cases and may provide an introduction to the type of issues brought before the Court on the basis of Article IX. In the Trial of Pakistani Prisoners of War,10 Pakistan sought to prevent India 5 from handing over Pakistani prisoners of war to Bangladesh where they might have, inter alia, faced charges of genocide because of their alleged conduct during the conflict leading to Bangladesh’s independence. In Pakistan’s view, the handover would have violated Article VI of the Convention. India disputed the Court’s jurisdiction and did not attend hearings. The case was settled before the Court had an opportunity to pronounce on the difficult jurisdictional and substantive issues. In two separate cases concerning the Application of the Convention on the 6 Prevention and Punishment of the Crime of Genocide, Bosnia-Herzegovina11 and Croatia12 accuse(d) Serbia13 of having committed genocide, and of having failed to 6 While many features of the Convention reflect general international law, the regime of dispute settlement pursuant to Article IX is treaty-specific: unless a State is bound by Article IX, it cannot submit to the Court disputes about the interpretation and application of the Genocide Convention. The possibility of bringing genocide-related disputes before the Court on the basis of some other jurisdictional clause remains unaffected, but seems remote. 7 For more on this point see Tams, Compromissory Clauses, 461; Morrison, in Damrosch, 58; Charney, AJIL 75 (1981), 85. 8 See Tomuschat, in: Zimmermann/Tomuschat/Oellers-Frahm/Tams, Statute of the ICJ (2nd ed.), Article 36, 668–9. 9 This is remarkable since, at the time of writing, a total of no more than 153 cases had been entered in the Court’s General List: see http://www.icj-cij.org/docket/. 10 Trial of Pakistani Prisoners of War, ICJ Reports 1973, 328 (provisional measures) and 347 (discontinuance). 11 Bosnian Genocide case, ICJ Reports 1993, 3 and 325 (provisional measures); ICJ Reports 1996, 595 (preliminary objections); ICJ Reports 2007, 43 (merits). 12 Croatian Genocide case, ICJ Reports 2008, 412 (preliminary objections); merits proceedings pending. 13 The case was initially brought against the Federal Republic of Yugoslavia, which would later change its its name to ‘Serbia and Montenegro’. In 2006, Montenegro became an independent State, while the Republic of Serbia continued the legal personality of the former State. As the ICJ clarified in its merits judgment in the (Bosnian) Genocide case, following Montenegro’s independence, ‘the

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Article IX 6–9 prevent and punish it, during the Yugoslav wars of 1991–1995. Because of the complexity of the dispute, including the uncertain legal status of the states of former Yugoslavia,14 these proceedings led to protracted litigation, which in the Croatian case is still on-going. The substance of Bosnia’s claims was addressed in the judgment of 26 February 2007, in which the Court pronounced on central aspects of the Convention, among them Articles I, II, III and VI.15 Hearings on the merits of the Croatian Genocide case are scheduled for 2014.16 7 In ten cases concerning the Legality of Use of Force, the Federal Republic of Yugoslavia17 challenged the use of force, by NATO member states, during the ‘Kosovo campaign’ of 1999.18 The case primarily concerned the use of force, but Serbia also asserted that the aerial bombardment amounted to genocide and invoked Article IX. At the interim stage of proceedings, the Court’s dismissed this claim, holding that the bombardment could not even arguably be considered to amount to genocide.19 Its eventual judgment turned on more fundamental questions of jurisdiction: having been admitted as a new UN member in 2000, the Court held that Serbia did not have access to the UN’s principal judicial organ in 1999, and thus dismissed the case.20 8 In Armed Activities on the Territory of the Congo, the Democratic Republic of the Congo alleged that Rwanda, through its involvement in the Second Congo war, had violated a range of international treaties, including the Genocide Convention.21 Rwanda disputed the Court’s jurisdiction, relying on the reservation it had made to Article IX. Against the strong dissent of a number of judges, the Court’s majority upheld Rwanda’s reservation and dismissed the case. 9 Given the high stakes of these proceedings, it is no surprise that Article IX has prompted controversy. Such controversy relates to its interpretation, but more fundamentally, touch upon two issues that, while often addressed in conjunction Republic of Serbia remains a respondent in the case, and at the date of the present Judgment is indeed the only Respondent’ (ICJ Reports 2007, 43, para. 77). In the following, both ‘Federal Republic of Yugoslavia’ and ‘(Republic of) Serbia’ are used, depending on the context. 14 For details see Wood, MPYUNL 1 (1998), 231; as well as the ICJ’s own summary: ICJ Reports 2007, 43, paras 88–99. Between 2001 and 2003, these issues were addressed in the Application for Revision case, ICJ Reports 2003, 7. 15 For comment on the judgment see notably Mennecke/Tams, Security & Peace 25 (2007), 61; Simma, in: Safferling/Conze, The Genocide Convention Sixty Years after its Adoption, 259; Dimitrijevic/Milanovic, LeidenJIL 21 (2008), 65. 16 For details see the information on the Court’s website: http://www.icj-cij.org/docket/index. php?p1=3&p2=1&k=73&case=118&code=cry (accessed 3 June 2013). 17 See fn. 13 for comment on the various ‘incarnations’ of the former Yugoslavia. 18 While the applicant filed ten separate proceedings – against Belgium, Canada, France, Germany, Italy, the Netherlands, Portugal, Spain, the United Kingdom and the United States of America – the Court, for practical reasons and to avoid repetition, decided to merge aspects of the oral proceedings. The cases were not formally joined, though. 19 See e. g. ICJ Reports 1999, 124 (for the order in the case brought against Belgium). Because the Federal Republic of Yugoslavia had instituted ten separate proceedings (based on largely the same set of facts), the Court rendered ten (largely identical) orders on provisional measures, which are all reproduced in the 1999 volume of the ICJ Reports. 20 ICJ Reports 2004, 279 (jurisdiction and admissibility) (for the case brought against Belgium; the Court’s largely identical judgments in the cases brought against other States can also be found in the 2004 volume of the ICJ Reports). 21 Congo Rwanda case, ICJ Reports 2006, 6 (jurisdiction and admissibility); and the Court’s earlier interim order: ICJ Reports 2002, 219.

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with Article IX, require to be addressed separately: First, states concerned at the prospect of judicial scrutiny have seen fit to enter reservations excluding the competence of the ICJ over questions of genocide. As is clear from the preceding summary, the ICJ has pronounced on the validity of such reservations; in fact cases relating to the Genocide Convention have shaped the modern law of reservations. While of particular importance for Article IX, the question of reservations is of broader relevance and treated in a separate chapter.22 Second, ICJ proceedings relating to genocide will typically involve questions of state responsibility, i. e. ‘the general conditions under international law for [a] State to be considered responsible for wrongful actions or omissions, and the legal consequences which flow therefrom’.23 That Article IX does not intend to exclude questions of responsibility a limine is plain from the wording and notably the passage ‘including [disputes] relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III’. Notwithstanding this language, for a long time, the interpretation of Article IX has been affected by uncertainties relating to the character of responsibility for state breaches of the Convention, which have ‘spilled over’ into discussions of the dispute settlement clause. In this respect, the ICJ’s judgment in the (Bosnian) Genocide has brought about welcome clarification. In it, the ICJ held that as a jurisdictional clause, Article IX is not determinative of the issue of state responsibility; while on substance holding that states indeed can incur (state) responsibility for committing acts of genocide pursuant to Article I.24 The subsequent analysis of Article IX takes account of these overdue clarifications, while the relevant questions of interpretation are addressed in the commentary to Article I. It is implicit in the preceding paragraphs that, by addressing disputes submitted 10 to it in line with Article IX, the ICJ can contribute to interpretation of the Convention’s provisions. This is but a normal side-effect of international adjudication: by setting out their views on a given norm, international courts establish ‘beacons of orientation’ that can guide the future application of the Convention.25 The ICJ does not, it should be added, possess formal law-making powers; pursuant to Article 59 of its Statute, its decisions have ‘no binding force except between the parties and in respect of that particular case’.26 Yet in a system lacking organised processes for the authoritative clarification of the law, ICJ pronouncements carry great weight and are rightly seen as persuasive precedents.27 The relevance of these ‘persuasive precedents’ is acknowledged in the relevant chapters of this Commentary. For present purposes, it is sufficient to note that Article IX is the enabling clause that allows the ICJ to interpret the Genocide Convention, and thereby to 22 See the contribution on Reservations. Reservations made with respect to Articl IX are addressed in mns 35–44 of that chapter. 23 Hence the common description of the scope of responsibility under international law: see para. 1 of the ILC’s Introductory Commentary to the ASR. The Articles including the ILC’s explanatory commentaries, are reproduced in YbILC 2001, vol. II/2, 31. 24 ICJ Reports 2007, 43, paras 166–79; and see Article I, mns 51–81. 25 For general studies assessing the impact of ICJ dispute settlement on the clarification and development of international law see e. g. Lauterpacht, The Development of International Law; Shahabuddeen, Precedent; and the contributions to Tams/Sloan, Development of International Law. 26 For comment see Brown, in: Zimmermann/Tomuschat/Oellers-Frahm/Tams, Statute of the ICJ (2nd ed.), Article 59, 1433–6, 1444–5. 27 See e. g. Continental Shelf, dissenting opinion of Judge Jennings, ICJ Reports 1984, 148, para. 27.

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Article IX 10–13 clarify the scope of its provisions. The preceding summary suggests (and the chapters on, for example, Articles I and VI confirm) that this ancillary benefit of binding dispute resolution should not be underestimated.

B. Drafting history 11 Given the ICJ’s potential influence, the drafting history provides surprisingly little insights into interpretation of Article IX. The travaux reflect considerable confusion about the character of the responsibility incurred by breaches of the Convention, which overshadowed debates about the future Article IX.28 In contrast, most other aspects of dispute settlement were addressed in passing only. 12 From the very beginning, drafts of the future Convention contained some form of compromissory clause. Article XIV of the Secretariat’s draft provided in rather brief form that ‘[d]isputes relating to the interpretation or application of the Convention shall be submitted to the International Court of Justice’.29 According to the Secretariat, the Court was the obvious forum to ‘ascertain whether one of the parties had faithfully discharged his obligations’, and was to be preferred to the more party-driven technique of arbitration.30 In essence, the Secretariat’s approach, subject to a number of clarifications and refinements, was confirmed during all stages of the drafting process; however, it was also somewhat obscured by addition to the text of the provision. 13 In the Ad Hoc Committee debates, the delegates from the Soviet Union and Poland – in line with their states’ generally sceptical attitude towards international adjudication at the time – expressed concern at the prospect of international litigation about questions relating to genocide, which in their view should be addressed by domestic courts only.31 A proposed amendment to that effect however was defeated by 4 votes to 3; as a consequence, draft article X of the Ad Hoc Committee text retained a reference to the ICJ.32 To clarify that litigation between treaty parties was envisaged, the words ‘between the High Contracting Parties’ were added after ‘Disputes’ upon a proposal by the United States. The United States also suggested text to address the relationship between ICJ proceedings and criminal proceedings. Its amendment proposed to exclude ICJ proceedings on matters brought before international criminal tribunals (‘…provided that no dispute shall be submitted to the International Court of Justice involving an issue which has been referred to, and is pending before or has been passed upon by a competent international criminal tribunal’).33 This amendment was based on the assumption that the Convention would have to address the possibility of parallel proceedings before the ICJ and an international criminal court. At the time of the Ad Hoc Committee debates, this indeed seemed necessary, as the Convention drafts envisaged the establishment of an international criminal tribunal competent to try 28 In this respect, the drafting process can indeed be said to have been a ‘somewhat tormented’ one: see Kolb, Compromissory Clause, in Gaeta, Genocide Convention, 408. 29 UN Doc. E/447, 10 (Draft Article XIV). 30 UN Doc. E/447, 50. 31 UN Doc. E/AC.25/SR. 20, 6. According to Mr. Morozov, ‘[m]atters concerning genocide should be handled by national courts. Defining genocide as something coming under international jurisdiction would be interfering with the sovereign rights of states’ (ibid.). 32 UN Doc. E/AC.25/SR. 20, 6. 33 UN Doc. E/623, 27.

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génocidaires; hence the United States proposal was adopted.34 Once that idea had been dropped in favour of a more flexible approach (with Article VI no longer establishing an international criminal court, but merely referring to a future one35), many delegates considered the phrase to have become unnecessary and the Sixth Committee opted to delete it.36 This clarified that the ICJ would play a role in inter-state disputes relating to the 14 interpretation and application of the Convention. However, the Ad Hoc Committee draft did not contain any specific reference to disputes ‘relating to the responsibility of a state for genocide or for any of the other acts enumerated in article III’. This phrase was added after lengthy (and not always very focused) debates in the Sixth Committee about the nature of ICJ proceedings under what was to become Article IX. A joint amendment submitted by the United Kingdom and Belgium37 emphasised that the provision would cover ‘disputes relating to the responsibility of a State for [acts of genocide]’. This amendment was part of a broader ‘strategy’, pursued by both states, to ensure a relevant role for the ICJ in disputes about genocide. The Sixth Committee had debated a similarly-worded amendment38 at some length when discussing what was to become Article IV, but it was narrowly defeated.39 The debate on Article IX in many respects was a reprise,40 and it evidenced considerable confusion about the notion of ‘responsibility’ – which at the time had not yet acquired the firm meaning associated with it under contemporary international law.41 Many delegates feared that as the Convention declared genocide to be a crime, an inter-state dispute about ‘responsibility for genocide’ would require or enable the ICJ to impose criminal responsibility upon states. This was seen as highly problematic and not acceptable to a number of states.42 The precise designation of responsibility incurred by a state for breaching the Convention – criminal? civil? responsibility simpliciter? – remained uncertain. Yet, on the substantive question there was little disagreement that, by virtue of Article IX, it would be possible to seek an ICJ judgment on whether states had complied with provisions of the 34 UN Doc. E/AC.25/SR. 20, 6. See Article X of the Secretariat Draft and Article VII of the Ad Hoc Committee Draft. 35 See Article VI, mns 32–7. 36 UN Doc. A/C.6/SR.105. The amendment (UN Doc. A/C.6/217) had been proposed by Iran and was carried by 22 to 8 votes, with 6 abstentions. 37 UN Doc. A/C.6/258. 38 See UN Doc. A/C.6/236 and Corr. 1: ‘Criminal responsibility for any act of genocide as specified in articles II and IV shall extend not only to all private persons or associations, but also to States, governments, or organs or authorities of the State or government. Such acts committed by or on behalf of States or governments constitute a breach of the present Convention.’ 39 UN Doc. A/C.6/SR.92, 95 and 96. After a wide-ranging debate, the amendment was narrowly defeated by 24 votes to 22: see UN Doc. A/C.6/SR.96. The United Kingdom and Belgium sought to re-open the debate about the role of the ICJ during the Sixth Committee debate on what was to become Article VI, but accepted that the substance of the matter had been covered already in the debates on Article IV: see UN Doc. A/C.6/252 for the proposed amendment and UN Doc. A/C.6/ SR.99 for the debate. 40 In fact, much of the debate was on points of order, with critics arguing the matter had already been settled: UN Doc. A/C.6/SR.105, e. g. at 449 (Mr. Morozov). 41 Kolb perceptively notes that in 1948, ‘the law of state responsibility was … still in doctrinal childhood’: R. Kolb, Compromissory Clause, in Gaeta, Genocide Convention, 411. 42 As the Court, having analysed the drafting history, noted in the Bosnian Genocide case: ‘much of [the debate] was concerned with proposals supporting the criminal responsibility of States; but those proposals were not adopted’ (para. 178).

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Article IX 14–17 Convention prohibiting acts of genocide. Schabas’ aptly summarises this aspect of the debate by noting that the amendment had ‘provoked some confusion but little controversy’.43 As a consequence, the joint amendment, introducing the express reference to ‘disputes relating to the responsibility of a State’ was carried by 18 votes to 2, with 15 abstentions.44 15 Thus amended, the provision, but for drafting changes, had acquired its eventual form. There was to be a final twist, though. Towards the end of the Sixth Committee debates, the United Kingdom, Belgium and the United States moved to replace the reference to disputes ‘relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III’ with ‘disputes arising from a charge by a Contracting Party that the crime of genocide or any other of the acts enumerated in article III has been committed within the jurisdiction of another Contracting Party’.45 This amendment, which would have emphasised the criminal character of genocide (‘crime of genocide’, ‘charges’), failed to attract the required (qualified) majority.46 In the view of the Chairman, it would have meant a substantive change: ‘[I]t was provided in article IX that those disputes, among others, which concerned the responsibility of a State for genocide or for any of the acts enumerated in article III, should be submitted to the International Court of Justice. According to the joint amendment, on the other hand, the disputes would not be those which concerned the responsibility of the State but those which resulted from an accusation to the effect that the crime had been committed in the territory of one of the contracting parties.’47

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In the light of this explanation, the ‘tormented’ aspect of the drafting history may be summarised as follows: first, Article IX was meant to permit proceedings about state responsibility for genocide; but second, that state responsibility was not criminal in nature. Much of the subsequent inter-state litigation based on Article IX would concern the implications of these statements.

C. Interpretation 17 Article IX permits states to refer disputes to the ICJ for decision; however it is silent on the conduct and outcome of ICJ proceedings. For the most part, these questions are not addressed in the Genocide Convention, but in the statutory provisions governing ICJ proceedings (notably the UN Charter, the ICJ Statute and the ICJ Rules48) and in the rules of general international law governing remedies available in adjudication. The interpretation of Article IX has to take 43

Schabas, Genocide in Int’l Law (1st ed.), 423. UN Doc. A/C.6/SR.105, 459. 45 UN Doc.A/C.6/305. 46 See the discussion in UN Doc. A/C.6/SR.131, 687–90. 47 UN Doc. A/C.6/SR.131, 687 (Chairman). 48 The UN Charter lists the ICJ as one of the ‘main organs’ of the Organization (Article 7) and sets out basic rules of its functioning in chapter XIV (Articles 92–96). The Statute of the ICJ (‘ICJ Statute’) is the central text establishing the Court and regulating the basic features of its functioning. A separate document, it forms an integral part of the UN Charter (Article 92 UN Charter). Pursuant to Article 93 para. 1 of the Charter, ‘[a]ll Members of the United Nations are de facto parties to the Statute of the International Court of Justice.’ The ICJ’s Rules of Court – adopted by the Court’s judges in the exercise of their autonomous powers of self-regulation recognised by Article 30 of the Statute – contain more detailed rules on the conduct of proceedings and fill gaps left by the Charter and Statute. 44

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account of this ‘normative environment’, as it has an immediate bearing on the application of Article IX.

I. General features of ICJ proceedings The ICJ is the principal judicial organ of the United Nations. It was established in 18 1946 and has its seat in The Hague.49 Its jurisdiction comprises contentious proceedings, and advisory proceedings requested by UN organs and specialized agencies50 (only the former of which are addressed by Article IX). According to Article 34 of the ICJ Statute, only states can be parties to contentious proceedings: as a consequence, Article IX’s system of dispute resolution is state-centred, and no equivalent to individual complaint procedures set up under human rights treaties exists (let alone provisions providing individual victims with direct recourse to international courts in proceedings against their state.) Article IX operates within these structural limits. It permits state parties to the Convention to rely on an international court to vindicate their legal positions – and notably to seek protection against acts of genocide. Governed by Article IX, ICJ proceedings can be instituted irrespective of any call for UN action pursuant to Article VIII. In practice, victims of genocide that will approach the ICJ will also approach other UN organs and nothing in the UN Charter or ICJ Statute precludes them from doing so.51 Between the (state) parties to a dispute, ICJ judgments are binding and final (Article 59). Unlike in many domestic legal systems, where courts are generally authorised to address claims, for the Court to be competent to entertain a dispute, a number of conditions need to be fulfilled. 1. Access to the court The most obvious condition is that the parties must have access to the Court. 19 This usually creates few problems, as the Court (as a UN organ) is open to all members of the United Nations, which in reality is the vast majority of the states of the world.52 Moreover, states not party to the Statute can have access to the Court if they have recognised – by way of a special declaration – the basic scheme of ICJ jurisdiction and expressed their willingness to comply with an eventual judgment.53 This follows from Article 35 para. 2 of the ICJ Statute, which provides:

49 ICJ Statute, Article 22. For useful information on the Court see e. g. Rosenne, International Court of Justice, in: MPEPIL. Rosenne, Law and Practice, and Zimmermann/Tomuschat/OellersFrahm/Tams, Statute of the ICJ (2nd ed.) provide comprehensive accounts. 50 Article 96 of the UN Charter, Articles 65–68 of the ICJ Statute; and see Oellers-Frahm, in: Zimmermann/Tomuschat/Oellers-Frahm/Tams, Statute of the ICJ (2nd ed.), Article 96, 207; Thirlway, Advisory Opinions, in MPEPIL. 51 In the Tehran Hostages case, the ICJ observed that there was nothing irregular in the ‘simultaneous exercise of [the] respective functions’ of the Security Council and Court: ICJ Reports 1980, 3, 21. 52 Article 35 para. 1 of the ICJ Statute; Article 93 para. 1 of the UN Charter. Pursuant to the former of these provisions, ‘[t]he Court shall be open to the states parties to the present Statute.’ 53 See Article 35 para. 2 of the ICJ Statute and SC Res. 9 (1946). A number of states, before becoming UN members, made such a Declaration covering disputes under the Genocide Convention: see e. g. the German Declaration, reproduced in Steinberger, Zao¨RV 18 (1956), 750–1. For details see Zimmermann, in: Zimmermann/Tomuschat/Oellers-Frahm/Tams, Statute of the ICJ (2nd ed.), Article 35, 623–5.

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Article IX 19–21 ‘The conditions under which the Court shall be open to other states shall, subject to the special provisions contained in treaties in force, be laid down by the Security Council, but in no case shall such conditions place the parties in a position of inequality before the Court.’

While normally unproblematic, access to Court gave rise to major debates in the various proceedings on genocide that involved the Federal Republic of Yugoslavia (Serbia and Montenegro)54 whose status with respect to the United Nations and the Genocide Convention was (as the ICJ put it) ‘not free from legal difficulties’.55 The matter in many respects seems unique, and owes much to the peculiarities of the dismemberment of Yugoslavia during the 1990s, so one ought not to overstate its general importance. However, it remains an important episode illustrating the challenges faced by the ICJ in applying its jurisdictional regime in proceedings between states whose status is uncertain. The issue arose due to the fact that between 1992 and 2001 – when the (Bosnian) and (Croatian) Genocide cases were brought against it and when it instituted proceedings in the ten Legality of Use of Force cases – it was not clear whether (the Federal Republic of) Yugoslavia was (still) a member of the United Nations.56 During the 1990 s, it had claimed to continue the legal personality of the former Socialist Federal Republic of Yugoslavia (SFRY), which had been a member of the United Nations. By contrast, in 1992, the General Assembly and Security Council held the FRY could not ‘continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations’, that it ‘should apply for membership in the United Nations and … not participate in the work of the General Assembly’.57 This amounted to a rejection of the FRY’s claim to continuity, but stopped short of a suspension or termination of UN membership.58 The uncertainties were only resolved when, in late 2000, after the end of the Milosevic regime, the FRY relinquished its claim to continuity and applied to be admitted as a new UN member (which it was).59 21 Perhaps inevitably, uncertainties relating to its status affected the various proceedings brought by and against the FRY. In responding to the situation, the ICJ showed a surprising degree of pragmatism and flexibility. In the Legality of Use of Force judgment rendered in 2004, it held that, having been admitted as a new member in 2000, the FRY could not have been a UN member when it instituted proceedings.60 It also held that non-UN members that had not made a Declaration required under SC Res. 9 (1946) could not have access to the Court on the basis of what Article 35 para. 2 refers to as ‘special provisions contained in treaties in force’: these terms were to be construed restrictively and covered only treaties concluded 20

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See fn. 13. Bosnian Genocide case (provisional measures), ICJ Reports 1993, 14, para. 18. At no time had the Federal Republic of Yugoslavia made a Declaration in the sense of Article 35 para. 2 and SC Res. 9 (1946). 56 See the clear summary by Zimmermann, in: Zimmermann/Tomuschat/Oellers-Frahm/Tams, Statute of the ICJ (2nd ed.), Article 35, 615–6; and further Rosenne, BYIL 80 (2009), 217. 57 SC Res. 777 (1992); GA Res. 47/1 (1992). 58 On 29 September 1992, in a Letter to the Permanent Representatives of Bosnia and Herzegovina and Croatia, the Under-Secretary-General and Legal Counsel of the United Nations attempted to set out the ‘considered view of the United Nations Secretariat regarding the practical consequences of the adoption by the General Assembly of resolution 47/1’; however, this equally failed to clarify the situation: see UN Doc. A/47/485. 59 SC Res. 1326 (2000); GA Res. 55/12 (2000). 60 Legality of Use of Force case, ICJ Reports (2004), 279, para. 79. 55

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prior to the Statute of the Court.61 The 2004 judgment seemed to be at odds with the Court’s earlier position, taken in 1996 at the preliminary objections stage of the (Bosnian) Genocide case, in which the Court had decided to exercise jurisdiction on the basis of Article IX of the Genocide Convention notwithstanding the FRY’s uncertain status.62 This position was upheld in 2007, in the merits judgment in the (Bosnian) Genocide case, in which the Court considered itself bound by its earlier preliminary objections judgment and decided not to re-open question of access.63 As a result, the FRY was considered not to have access as an applicant (in 1999) in proceedings against NATO states, but did have access (and could be sued) as a respondent by Bosnia and Herzegovina in the (Bosnian) Genocide case. To complicate matters further, in the (Croatian) Genocide case, where the matter was argued again, the Court held in 2008 that problems of access to the Court could be cured in the course of proceedings, such as when a party to proceedings became a UN Member after the claims were filed.64 As noted at the outset, the conundrum posed by the ‘Yugoslav’ cases was not to 22 be resolved lightly. It was indeed a ‘rather confused and complex state of affairs that obtained within the United Nations surrounding the issue of the legal status of the Federal Republic of Yugoslavia in the Organization’.65 However, the Court’s own jurisprudence has added further twists: not surprisingly, its pragmatic and flexible handling of ‘status’ issues has drawn criticism from commentators who have spoken of ‘fifteen years of inconsistency’ and described the ICJ’s jurisprudence as ‘consistently inconsistent’.66 That these general problems should have arisen in proceedings brought under Article IX is in some ways coincidental, as they owed more to general aspects of ICJ proceedings than to specific problems of the Genocide Convention. However, they illustrate that recourse to the ICJ in cases involving allegations of genocide will hardly be a straightforward matter. 2. Jurisdiction Access to the Court is merely the first requirement for the Court to address a 23 dispute. In addition, the Court must have jurisdiction to entertain the claims brought before it. While access to Court (outside special situations like those addressed in the preceding section) is usually a ‘non-issue’, jurisdictional challenges are a regular feature of ICJ proceedings. The governing principle – distinguishing ICJ proceedings from those before domestic courts – is that jurisdiction depends on the consent of the parties. In its Article 36, the ICJ Statute envisages three main

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Legality of Use of Force case, ICJ Reports (2004), 279, paras 113–4. Hence the Court explicit finding that ‘on the basis of Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, [the Court] has jurisdiction to adjudicate upon the dispute’ and thus could the ‘proceed to consider the merits of the case’: Bosnian Genocide case (preliminary objections), ICJ Reports 1996, 595, paras 47(2)(a) and 46. 63 Bosnian Genocide case, ICJ Reports 2007, 43, para. 114. In addition, the Court rejected, in 2003, an attempt to have the 1996 proceedings revised in the light of the FRY’s admission to the UN: see Application for Revision, ICJ Reports 2003, 7. 64 (Croatian) Genocide case, ICJ Reports 2008, 412, para. 92. 65 Legality of Use of Force case, ICJ Reports (2004), 279, para. 73. 66 As indicated in the title of Blum’s comment: Blum, AJIL 103 (2009), 264; and further Bordin, LPICT 10 (2011), 315. 62

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Article IX 23, 24 forms of expressing consent:67 by virtue of a special agreement (compromis); by way of a unilateral declaration recognising the jurisdiction of the Court (so-called ‘optional clause declarations’); and through a treaty clause envisaging the submission of disputes to the Court (so-called ‘compromissory clauses’). Article IX belongs to the third category; it is one of the many compromissory clauses establishing (as Article 36 para. 1 of the ICJ Statute puts it) ‘the jurisdiction of the Court [over] … all matters specially provided for in … treaties and conventions in force.’68 Article 36 para. 1 of the ICJ Statute thus may be seen as an ‘enabling clause’ allowing states to rely on the Court as an agency of dispute resolution – and of course, it equally permits them to make the exercise of that jurisdiction subject to specific conditions. Article IX makes use of that enabling clause and also clarifies the scope of the Court’s jurisdiction by describing the types of disputes that can be brought before the Court, viz. those concerning the ‘interpretation, application or fulfilment of the … [Genocide] Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III’.69 As will be shown below, compared to other compromissory clauses, it is a fairly straightforward jurisdictional clause that does not make that jurisdiction subject to further, special conditions. 24 Article 36 para. 1 of the ICJ Statute, read in line with Article IX, is the primary basis of establishing the Court’s jurisdiction over questions of genocide, but it is not the only one. As the different jurisdictional bases mentioned above are not mutually exclusive,70 the Court can also entertain disputes relating to genocide on the basis of Article 36 para. 2 of the ICJ Statute or (although that may be an unlikely setting) a compromis. For the Court to be able to entertain jurisdiction under Article 36 para. 2, the disputing states must have submitted optional clause declarations covering questions of genocide. If this is the case, the Court’s jurisdiction is not restricted to disputes about the interpretation, application or fulfilment of the Convention, but can comprise other matters as well.71 Finally, outside the realm of contentious proceedings, UN organs such as the General Assembly can request the Court to submit an advisory opinion on legal questions relating to genocide, as happened in the advisory proceedings concerning Reservations to the Genocide Convention.72 Article IX does not preclude such ‘other’ proceedings relating to 67 See Rosenne, Law and Practice, 473–5; and further Tomuschat, in: Zimmermann/Tomuschat/ Oellers-Frahm/Tams, Statute of the ICJ (2nd ed.), Article 36, 656. In addition to the bases of jurisdiction referred to in Article 36, two other (related) settings deserve to be mentioned: (i) Article 37 provides that compromissory clauses referring to the ICJ’s predecessor, the PCIJ, can be ‘transferred’ to the ICJ; (ii) under the doctrine of forum prorogatum, parties can implicitly agree to proceedings. 68 On the Court’s website, the total figure of these clauses is put at just under 300 (see http:// www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=4; accessed 3 June 2013). To this figure, clauses referring to the ICJ’s predecessor, the PCIJ, have to be added, as they, too, can be invoked before the ICJ pursuant to Article 37 of the ICJ Statute. The number of such ‘PCIJ clauses’ is usually put at 400–500. On all this see Tams, Compromissory Clauses, 471–3. 69 See infra, mns 35–49, for detail. 70 See PCIJ, Electricity Company of Sofia and Bulgaria, Ser. A/B, No. 77 (1939), 76; ICJ, Territorial and Maritime Dispute (preliminary objections), ICJ Reports 2007, 832, paras 132–6. 71 Optional clause declarations currently in force are reproduced on the ICJ website: http:// www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=3. See further Fitzmaurice, ICJ, Optional Clause, in MPEPIL. 72 ICJ Reports 1951, 15.

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genocide (whether advisory or contentious). However, it is important to appreciate that they do not implicate Article IX, but are based on a separate jurisdictional title. Whether a specific dispute falls within the scope of a compromissory clause (or 25 indeed another basis of jurisdiction) is a matter for the Court to decide. As a matter of principle, this is not disputed: the power of courts to determine their own jurisdiction is seen as inherent; and it is recognised in Article 36 para. 6 of the ICJ Statute.73 Whether an application ultimately relates to matters governed by the Genocide Convention will often only become clear after an eventual judgment on the merits. The Court’s jurisprudence – developed not least through the analysis of Article IX in the Legality of Use of Force cases – suggests that for an application based on Article IX to be admissible, the Court ‘cannot limit itself to noting that one of the Parties maintains [that it does]’74, but has to ascertain that the breaches alleged are capable of falling within the scope of the clause.75 This will typically require applicants to make out at least a plausible case. 3. Fundamental aspects of proceedings Proceedings brought on the basis of Article IX follow the general rules governing 26 ICJ proceedings.76 Pursuant to Article 43 of the ICJ Statute, they comprise a written and an oral phase, the former typically involving two rounds of written pleadings. If the respondent state challenges the Court’s jurisdiction or the admissibility of the claim, it can request that these matters be addressed as part of preliminary proceedings (with separate written and oral phases, and a separate judgment) before the merits are considered.77 As a consequence, proceedings before the ICJ can be lengthy: while the fourteen years of proceedings in the (Bosnian) Genocide case (from the institution of proceedings in 1993 to the Court’s merits judgment in 2007) were exceptional, few cases are dealt with in less than three to four years. Notwithstanding the potential for interim relief,78 this affects the influence of ICJ dispute settlement on the resolution of on-going conflicts. As a general procedural requirement (which Article IX confirms expressly), the 27 ICJ can only handle claims that relate to a ‘dispute’ between the litigant parties. This has usually79 been interpreted liberally, as requiring a ‘disagreement on a point of law or fact, a conflict of legal views or of interests’.80 In proceedings brought under Article IX, such ‘dispute’ might for instance concern allegations of genocide by the applicant (and denied by the respondent), or duties to repress and punish genocidal acts. As the ICJ has clarified, in order to be capable of legal redress, 73 See Nottebohm case (preliminary objections), ICJ Reports 1953, 111, 119; Tomuschat, in: Zimmermann/Tomuschat/Oellers-Frahm/Tams, Statute of the ICJ (2nd ed.), Article 36, 694. 74 See Legality of Use of Force (Yugoslavia v. Belgium), ICJ Reports 1999, 124, paras 38–40 (provisional measures). 75 Oil Platforms, ICJ Reports 1996-II, 803, para. 16 (preliminary objections). 76 Collier and Lowe provide a clear analysis of the general principles governing international proceedings (Collier/Lowe, Settlement of International Disputes, 189–273). 77 See Article 79 of the Rules of Court; and see Talmon, in: Zimmermann/Tomuschat/OellersFrahm/Tams, Statute of the ICJ (2nd ed.), Article 43, 1158–70; Collier/Lowe, Settlement of International Disputes, 227–9. 78 See infra, mns 33–4. 79 But contrast the recent application of the requirement in the Georgia v Russia case, Judgment of 1 April 2011 (available at www.icj-cij.org). 80 PCIJ, Mavrommatis Palestine Concessions, Ser. A., No. 2 (1924), 11.

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Article IX 27, 28 disputes must not have become moot, but retain their ‘actual’ relevance.81 Finally, pursuant to the so-called ‘indispensable third party rule’, the Court will not entertain claims brought against a state that has accepted the Court’s jurisdiction if they, in reality, implicate another state that has not consented to the Court’s jurisdiction.82 The application of this rule has posed considerable problems in practice, as often, one state’s allegations will in some way affect not only the respondent, but other states not bound by Article IX (and thus not subject to the Court’s jurisdiction). Read properly, for a third state to be an ‘indispensable’ third party, its conduct has to constitute the very subject-matter of the proceedings before the Court.83 With respect to Article IX, one might e. g. think of proceedings brought against a state for failure to prevent genocidal conduct, if the acts in question had been committed by another, third, state not bound by Article IX. In this setting, the Court could only pronounce on the allegation (failure to prevent) if it took a stance on whether genocide had been committed by another state (not subject to its jurisdiction). Under these circumstances, it could indeed be said – adapting a phrase used by the Court – that ‘a finding … regarding the existence or the content of the responsibility’ of the absent third party would not only ‘have implications for the legal situation of the two other States concerned’ but would be ‘needed as a basis for the Court’s decision’ on the claims before it.84 If (and only if) this is the case, the ‘indispensable third party’ precludes the Court from exercising jurisdiction. 28 Furthermore, just as in many domestic legal settings, applicant states must establish a legal interest in the subject-matter of the dispute.85 In regular inter-state litigation, this will usually be an individual legal interest, for instance resulting from a breach, by another state, that had specially affected the applicant state.86 In the case of the Genocide Convention, such special effects may for example result from acts of genocide committed by one state against citizens of another state, which, because of the medium of nationality, injure that other state (the state of nationality) in its individual capacity.87 However, if ICJ proceedings were always dependent on the 81 82

Nuclear Tests, ICJ Reports 1974, 253, paras 55–9. See Monetary Gold, ICJ Reports 1954, paras 19, 32; East Timor, ICJ Reports 1995, 90, paras 23–

35. 83 This was implicitly accepted in the Nauru case, ICJ Reports (1992), 240, para. 55. For comment see Zimmermann, Zao¨RV 55 (1995), 105. 84 See the Nauru case, ICJ Reports 1992, 240, para. 55. 85 Owing to different national traditions, this requirement is referred to in a variety of ways which are not always clearly distinguished. Common terms include locus standi, jus standi, legal interest, interest to sue, inte´reˆt pour agir, capacity or special capacity, and right or cause of action. For details see Gu¨nther, Die Klagebefugnis, 20–8; Tams, Obligations Erga Omnes, 25–47; M’Baye, RdC 209 (1988 II), 223. 86 Article 42 of the ILC’s Articles on State Responsibility (YbILC 2001, vol. II/2, 117) mentions common forms of individual legal injury. 87 Traditional international law – shaped not the least by pronouncements of the ICJ and its predecessor, the Permanent Court of International Justice – considers the right to bring claims on behalf of nationals to be a right of the State itself: see Mavrommatis Palestine Concessions, PCIJ, Ser. A, No 2, 12: ‘It is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from which they have been unable to obtain satisfaction through ordinary channels. By taking up the case of one of its subjects and by resorting to diplomatic protection or international judicial proceedings on his behalf, a State is in reality asserting its own rights—its right to ensure, in the person of its subjects, respect for the rules of international law.’

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showing of an individual legal interest, an important pattern of breaches could never be brought before the Court, namely acts of genocide committed by a state against its own population. Such acts of genocide amount to an international crime, but do not injure any other state in its individual capacity.88 Not surprisingly, traditional international law – premised on a bilateral paradigm of reciprocal rights and duties between states – has struggled to come to terms with atrocities committed by a state against its own citizens.89 Contemporary international law seems to have overcome these difficulties by recognising a category of ‘public interest obligations’ that can be enforced by each state, irrespective of an individual legal interest. The key pronouncement is the ICJ’s 1970 judgment in the Barcelona Traction case, in which the Court recognised that ‘in view of the importance of the rights involved, all states can be held to have a legal interest in [the] protection’ of certain fundamental obligations owed to the international community as a whole – which it called ‘obligations erga omnes’.90 By virtue of this general legal interest, each and every state, irrespective of any individually sustained injury, has standing to institute proceedings before the ICJ in a form of ‘public interest litigation’, provided that the Court’s jurisdiction is established according to the rules outlined above. Since 1970, the Court’s approach to ‘community obligations’ has been confirmed and progressively refined. Of particular relevance are the ILC’s Articles on State Responsibility, adopted in 2001. In its Article 48 para. 1, the ILC drew on the erga omnes concept to formulate a more general rule governing responses against wrongful conduct, pursuant to which: ‘[a]ny State other than an [individually] injured State is entitled to invoke the responsibility of another State … if: (b) the obligation breached is owed to the international community as a whole.’91

In its judgment in the Questions Relating to the Obligation to Prosecute or 29 Extradite case, the ICJ clarified that, frequently, public interests will be protected through international treaties. Its reasoning, while developed in relation to the Convention against Torture (on which the proceedings were based), can be applied to the Genocide Convention: ‘The common interest in compliance with the relevant obligations under the Convention against Torture implies the entitlement of each State party to the Convention to make a claim concerning the cessation of an alleged breach by another State party. If a special interest were 88 In its Reservations opinion, the ICJ formulated this in more sweeping (if perhaps simplistic terms), when noting that ‘[i]n [the 1948 Genocide] convention, the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely the accomplishment of those high purposes which are the raison d’eˆtre of the convention. Consequently, in a convention of this type, one cannot speak of individual advantages and disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties.’ (ICJ Reports 1951, 15, 24) 89 See e.g. South West Africa, ICJ Reports 1966, 6 (in which the ICJ controversially denied the applicant States’ legal interest to challenge the South African mandate over South West Africa/ Namibia). This provoked an outcry and, indirectly, led to the acceptance of the erga omnes concept. 90 ICJ Reports 1970, 3, paras 33–4. For details see Tams, Obligations Erga Omnes. 91 Pursuant to paragraph 8 of the ILC’s explanatory commentary, Article 42 para. 1 lit (b) ASR ‘intends to give effect to the statement by ICJ in the Barcelona Traction case, where the Court drew ‘an essential distinction’ between obligations owed to particular States and those owed ‘towards the international community as a whole’’ (YbILC 2001, vol. II/2, 118). For comment see Crawford, in: Essays Simma, 221.

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Article IX 29–32 required for that purpose, in many cases no State would be in the position to make such a claim. It follows that any State party to the Convention may invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes, such as those under Article 6, paragraph 2, and Article 7, paragraph 1, of the Convention, and to bring that failure to an end.’92

While international law has progressively recognised a general right to bring proceedings in defence of public interests, it is not entirely clear which provisions of the Genocide Convention protect public interests – and thus can be enforced by all state parties. As regards the Convention’s core obligation, enshrined in Article I, not to commit genocide, the matter is beyond dispute. From 1970 onwards, it has been generally recognised that duties flowing from ‘the outlawing of acts of … genocide’ qualify as obligations erga omnes and therefore can be enforced by means of public interest litigation;93 as a consequence, all states parties to the Convention have standing to institute ICJ proceedings against another state that in their view commits genocide against its own population. The same would seem to apply to breaches of ancillary duties imposed by Article III lit. (b), (c), (d) and (e) of the Convention – although (as mentioned above) the ‘indispensable third party rule’ could act as a further procedural hurdle. 31 It is more difficult to assess whether other duties imposed by the Convention can equally be enforced by way of public interest litigation. In this respect, a differentiated approach is called for. The twin obligations to prevent and punish genocide, as set out in Article I, equally derive from ‘the outlawing of acts of … genocide’ and should be seen as obligations erga omnes. By extension, and in the light of the ICJ’s consideration in the Questions Relating to the Obligation to Prosecute or Extradite case, the same would apply with respect to the obligation to comply with extradition requests in the sense of Article VII para. 2 of the Convention.94 All these obligations are designed to facilitate the repression and punishment of genocide, that is the main objective of the Convention; this suggests that they, too, could be enforced by each state party to the Convention. By contrast, breaches of ‘lesser’ obligations – e. g. procedural obligations under Article XI para. 2 and XI para. 3, or the alleged duty to respect the jurisdiction of the territorial state that was at stake in the Prisoners of War case – are not as closely related to the ‘outlawing of acts of … genocide’. They are governed by the regular rules requiring the establishment of an individual injury. 32 That relatively fundamental questions such as standing in judicio should remain uncertain is due not least to the paucity of ICJ case-law based on the Genocide Convention. Despite the Court’s recognition of the erga omnes doctrine, states have so far rarely been inclined to institute ‘public interest proceedings’ before the ICJ. Proceedings relating to genocide follow this general trend: as the brief summaries provided above show, they have in all cases so far been brought by states that claimed to have been specially affected by breaches of the Convention – notably the 30

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Obligation to Prosecute or Extradite, Judgment of 20 July 2012 (at www.icj-cij.org), para. 69. ICJ Reports 1970, 3, para. 34. 94 The ICJ’s judgment in Obligation to Prosecute or Extradite, Judgment of 20 July 2012 (at www.icj-cij.org) would seem to support this by implication: as its title indicates, the case concerned the duty to prosecute or extradite torturers – i. e. the equivalent, within the Convention against Torture, of the duty to prosecute and punish individual perpetrators of atrocities. It was this obligation which the ICJ qualified as an obligations erga omnes partes. 93

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home state of citizens allegedly suffering genocide committed by a foreign state (Bosnia and Herzegovina and Croatia in the two Genocide case, the Federal Republic of Yugoslavia in Legality of Use of Force, etc.). By contrast, where states have been accused of committing genocide against their own population, foreign state have so far not made use of the potential for ICJ enforcement. This presumably reflects uncertainties about the ICJ’s willingness to accept forms of ‘public interest litigation’ just as much as scepticism about the impact of its pronouncements. It is worth noting, though, that contemporary international law does recognise the possibility of judicial action against states accused of genocide. In this respect, it has gone beyond the narrow approaches advocated by states – like the United States and the Philippines – in and shortly after 1948. 4. Interim proceedings While its proceedings tend to be lengthy, it is worth noting that the ICJ has ‘the 33 power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party’.95 Where an applicant state asserts that genocide is on-going, provisional measures will be of essential relevance. As interim proceedings usually follow a tight timeframe, the Court assesses only summarily whether it has jurisdiction to entertain a dispute, and whether, in view of the urgency of the situation, it should order interim relief with a view to safeguarding rights of the parties. This requires, both, an assessment of the possible harm caused ‘on the ground’96 as well as a summary assessment of the strength of the applicant’s case on the merits.97 As a consequence, provisional measures will only be ordered if, in view of the ICJ, the jurisdictional title invoked ‘appears, prima facie, to afford a possible basis on which the jurisdiction of the Court might be founded’98 and if ‘the rights asserted by a party are at least plausible’.99 Pursuant to Article 41, ICJ orders are binding;100 in practice, however, unless the Court is backed up by international pressure, compliance may be difficult to ensure.101 While designed to ensure interim relief, provisional measures are incidental 34 proceedings that serve to preserve rights of the parties that are at issue in the proceedings. This explains the need for a plausible case on the merits (as assessed summarily by the Court); moreover, it also means that requests for provisional measures cannot go beyond what could be requested in the proceedings in the main. The (Bosnian) Genocide case exemplifies that this can entail a considerable narrowing of requests for relief: in its first order on provisional measures, faced with 95 Article 41 of the ICJ Statute. For comment see notably Oellers-Frahm, in: Zimmermann/ Tomuschat/Oellers-Frahm/Tams, Statute of the ICJ (2nd ed.), Article 41, 1026. 96 For example, in the Pakistani Prisoner of War case, where the applicant itself had requested time for negotiations, the Court decided not to order provisional measures as the matter was not (no longer) urgent: see ICJ Reports 1973, 328. 97 Oellers-Frahm provides many further details: Oellers-Frahm, Article 41, in Zimmermann/ Tomuschat/Oellers-Frahm/Tams, 1038–50. 98 Fisheries case (provisional measures), ICJ Reports 1972, 12, para. 17. 99 See e. g. Obligation to Prosecute or Extradite (provisional measures), ICJ Reports 2009, 139, para. 57. 100 Perhaps curiously, this was discussed for a considerable time, but ultimately settled in LaGrand, ICJ Reports 2001, 466, paras 99–109. 101 See further infra, mn. 54.

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Article IX 34–38 far-reaching requests by Bosnia and Herzegovina, the Court drew a clear line between matters relating to genocide as governed by the Genocide Convention, and broader issues such as self-defence or state survival – while the former were granted, the latter were dismissed.102 This is but another illustration of the restricted character of the Court’s jurisdiction.

II. Specific features of Article IX 35

Article IX operates within the general framework governing ICJ proceedings, but adds some particular features. Notably it specifies the scope of the Court’s jurisdiction and the modalities under which state parties can make use of it. 1. Disputes ‘shall be submitted … at the request of any of the parties to the dispute’

36

To begin with the final part of the provision, disputes covered by Article IX ‘shall be submitted to the International Court of Justice at the request of any of the parties to the dispute’. This clarifies the application of Article IX in two respects. First, notwithstanding the principle of consensual jurisdiction, cases under Article IX can be brought unilaterally. As acceptance of Article IX expresses consent to see future disputes litigated before the ICJ, it does not matter that, once a case has been brought, one of the parties to the dispute (the respondent state) would prefer to avoid recourse to the Court in that particular instance. Should the respondent state consider the particular matter to be outside the scope of Article IX, it can always object to the exercise of the Court’s jurisdiction, including by raising preliminary matters. Second, the term ‘request’ underlines that the Court’s involvement in disputes about genocide depends on the willingness of disputing states to refer matters to it: ICJ proceedings have to be requested; the Court does not investigate matters proprio motu.103 And even if the Convention has been violated, states are not required to institute proceedings; quite to the contrary, they usually do not do so lightly. 2. Disputes ‘between the Contracting Parties’

Using language typical of compromissory clauses, Article IX clarifies that ICJ proceedings must relate to disputes ‘between the Contracting Parties’, that is state parties to the Convention that have accepted Article IX. This is an obvious restriction, which follows from the pacta tertiis principle.104 38 Beyond that, the words can also be read as embodying a temporal restriction: in order to be ‘Contracting Parties’, the parties to the dispute must have been bound by the Convention when the dispute arose. If a state party denounces the Convention pursuant to Article XIV (which so far has not occurred), the compromissory clause will cease to apply from the moment the denunciation becomes effective.105 37

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See Bosnian Genocide case (provisional measures), ICJ Reports 1993, 3, paras 33–9. To describe the Court’s jurisdiction as ‘mandatory but subsidiary’ (as Kolb does) does not seem to capture this entirely: see Kolb, Compromissory Clause, in: Gaeta, Genocide Convention, 416. 104 Mavrommatis Palestine Concessions, PCIJ, Ser. A, No. 2 (1924), 11. 105 See Article XIV, mn. 13; and further Kolb who also discusses scenarios in which a compromissory clause might ‘survive’ the suspension and termination of a treaty and permit 103

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However, if proceedings have been instituted prior to the date on which the denunciation became effective, the ICJ will retain jurisdiction to decide the case.106 While these questions – relating to disputes between states that have ceased to be 39 ‘Contracting Parties’ – seems generally agreed, there is much debate about disputes preceding the entry into force of the Convention for (one of) the parties to a dispute. This matter is often addressed under the rubric of ‘retroactivity’; however, it raises two distinct issues: the first concerns the temporal scope of application of the Convention as such. This is the general dimension of retroactivity, which has been addressed elsewhere:107 while the matter is controversial, the better view is that the Convention – as a treaty – does not apply retroactively. This means that (even though Article I ‘confirms’ the criminal character of genocide) the Convention as such cannot be applied to atrocities preceding its entry into force. Furthermore, as regards particular state parties, the Convention only imposes obligations (or creates rights) from the moment that particular state became bound by it. Finally, in instances of state succession where the predecessor state had been a party, the successor state does not automatically succeed to the Convention. These views inform the interpretation of Article IX. They suggest that, just as the Convention more generally, so its dispute settlement clause should be construed in line with the presumption against retroactivity. Admittedly, the ICJ has not always been entirely clear on this point. In the (Bosnian) Genocide case, it rejected the respondent’s claim based on ‘non-retroactivity’ and noted that ‘the Genocide Convention – and in particular Article IX – does not contain any clause the object or effect of which is to limit in such manner the scope of its jurisdiction ratione temporis, and nor did the Parties themselves make any reservations to that end.’108

The ICJ’s more recent jurisprudence however points in a different direction, and 40 is more in line with the general presumption against retroactivity: In Application of the International Convention on the Elimination of all Forms of Racial Discrimination, the Court was faced with a similar argument in relation to the similarlyworded dispute settlement clause applicable, Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination(CERD). Having assessed whether statements preceding Georgia’s accession to CERD could be relied on as evidence of a dispute between the parties, the Court noted that even if Georgia had specifically raised concerns about racial discrimination (which it had not), ‘before [Georgia] became party to CERD in July 1999 … such dispute, though about racial discrimination, could not have been a dispute with respect to the interpretation or application of CERD, the only kind of dispute in respect of which the Court is given jurisdiction by Article 22 of that Convention’.109

As the discussion indicates, controversies relating to the Convention’s temporal 41 scope of application have at times ‘spilled over’ into the interpretation of Article IX. Article IX in itself is not the place to settle them once and for all: as the dispute parties to challenge the validity of such action (Kolb, Compromissory Clause, in: Gaeta, Genocide Convention, 423–4). Given the fairly straightforward construction of Article XIV, such cases would however seem unlikely to arise under the Genocide Convention. 106 See e. g. ICJ, Nicaragua case (preliminary objections), ICJ Reports 1984, 392, para. 54. 107 See especially Introduction, mns 50–5. 108 Bosnian Genocide case (preliminary objections), ICJ Reports 1996, 595, para. 34. 109 Georgia Russia case, Judgment of 1 April 2011 (at www.icj-cij.org), para. 64.

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Article IX 41–44 settlement system is designed to ensure compliance with the substantive regime of the Convention, it should be applicable to the extent that the Convention as a treaty is applicable. If – as set out in the commentaries to Articles I and XI – it is construed as a ‘regular’, non-retroactive treaty, then the same should hold true for Article IX. 42 In practice, the application of these principles may give rise to considerable difficulties, as many disputes can be looked at from different angles, and can evolve over time. In the Certain Property case, faced with a similar problem under a different compromissory clause, the ICJ clarified that, in order to determine whether a dispute was covered ratione temporis by a compromissory clause, it was necessary to identify the ‘source or real cause’ of the parties’ disagreement.110 While no doubt general and in need of specification, this indeed would seem a useful guideline. It implies that a considerable number of disputes about atrocity crimes (including those alleged to have involved acts of genocide whether) will not be actionable under Article IX. 3. Disputes ‘relating to the interpretation, application or fulfilment of the present Convention’ By referring to disputes ‘relating to the interpretation, application or fulfilment of the present Convention’ Article IX clarifies the substantive scope of the Court’s jurisdiction. There are different aspects to this, some obvious, some less so. Three observations seem in order. 44 First, Article IX covers disputes about ‘the present Convention’. As no particular aspect of the Convention is excluded, this suggests that all rights and obligations enshrined in the Convention can form the subject of inter-state litigation: it is the ‘present Convention’ in its entirety that is referred to.111 Conversely, the reference serves a limiting function: jurisdiction under Article IX covers disputes under the Convention only, but not disputes relating to other rules of international law, even where they are intertwined with allegations of genocide. This restriction is, both, an obvious consequence of the ancillary character of dispute settlement clauses like Article IX (which only go as far as ‘their’ treaty) and a crucial limitation on the ICJ’s role. As the Court noted in its 2007 judgment in the (Bosnian) Genocide case, it has ‘no power to rule on alleged breaches of other obligations, not amounting to genocide, particularly those protecting human rights in armed conflict.’112 That was so, it continued, ‘even if the alleged breaches are of obligations under peremptory norms, or of obligations which protect essential humanitarian values, and which may be owed erga omnes.’113 As was noted above, because many other universal treaties do not envisage recourse to the ICJ as a dispute settlement agency, states intending to raise before the Court large-scale atrocities have in practice been required to present their case exclusively as a case about genocide – while leaving to a side legal rules ‘protecting human rights in armed conflict.’114 The result has been a set of artificially ‘truncated’ proceedings, most prominently in the (Bosnian) and (Croatian) Genocide cases, in which the bulk of atrocities (war crimes, crimes 43

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Certain Property (preliminary objections), ICJ Reports 2005, 6, para. 46. But see infra, mn. 46, for comment on problems relating to State responsibility. 112 ICJ Reports 2007, 43, para. 147. 113 ICJ Reports 2007, 43, para. 147. 114 ICJ Reports 2007, 43, para. 147. 111

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against humanity, other human rights violations below the threshold of genocide) could not be addressed for lack of jurisdiction. That such truncation of disputes is undesirable (both for the claimant state and the ICJ) need hardly be stated; however, it is but a natural consequence of the consensual character of ICJ jurisdiction and the unwillingness of states to include compromissory clauses into other universal treaties of a humanitarian character.115 Second, by mentioning ‘the interpretation, application or fulfilment’ of the 45 Convention, Article IX seeks to give a more precise description of the types of disputes with which the Court may be seized. The use of language is similar, but more expansive, than that used in other compromissory clauses, which typically only mention disputes relating to the ‘interpretation and/or application’ of treaties.116 However, not much should be read into this. The Court’s jurisprudence confirms that the terms ‘interpretation’ and ‘application’ do not have any fixed and categorical meaning. They are used as alternatives and overlap significantly. ‘Interpretation’ is typically understood as the process of ‘explaining the meaning’ of a legal norm; ‘application’ is ‘the action of putting something into operation’ in a given case.117 Very often, disputes about the application of a particular treaty will be based on differences of interpretation; at the same time, differences of interpretation will only become relevant if some form of treaty application is at least considered.118 As the Court has had occasion to observe, the addition of the term ‘fulfilment’ does not seem to affect this general assessment: ‘fulfilment’ may be taken to refer to an application that ‘meets the requirements’ of a norm.119 Disputes about the ‘fulfilment’ of the Convention will typically implicate the application (and possibly interpretation) of the Convention. On that basis, it may indeed been said that the addition of the word ‘fulfilment’ ‘does not appear to be significant’.120 If anything, it confirms the impression that ‘by inserting all three alternative terms’, drafters had sought to ‘give a coverage as exhaustive as possible to the compromissory clause’ and to ‘close down all possible loopholes’.121 Third, for the avoidance of doubt, Article IX mentions one type of dispute 46 expressly, namely disputes ‘relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III’. As noted above, the inclusion of this clause owes much to the peculiarities of the drafting process;122 its existence confirms that state parties can indeed incur responsibility, under Article I, if they commit genocide123 – which had, as noted elsewhere, remained disputed until the 115

For more on this point see Tams, Compromissory Clauses, 461. In his Declaration appended to the preliminary objections judgment in the Bosnian Genocide case, Judge Oda described the clause as ‘unique as compared with the compromissory clauses found in other multilateral treaties’ as it mentioned the word ‘fulfilment’ alongside the normal ‘application/interpretation’: ICJ Reports 1996, 625, para. 5. However, that seems to overstate the differences of formulation: as noted by Judge Tomka at the merits stage of the same case, the term ‘fulfilment’ ‘does not add anything to the substantive obligations of the parties’: ICJ Reports 2007, 310. 117 Oxford Dictionary, entries ‘interpretation’ and ‘application’ (no. 2). 118 See similar considerations in Kolb, Scope Ratione Materiae, in: Gaeta, Genocide Convention, 451–2. 119 Oxford Dictionary, entry ‘fulfilment’ (no. 2). 120 Bosnian Genocide case, ICJ Reports 2007, 43, para. 168. 121 Kolb, Scope Ratione Materiae, in: Gaeta, Genocide Convention, 451. 122 See supra, mns 11–5. 123 The ICJ made the point expressly in the Bosnian Genocide case, where it observed: ‘The particular terms of the phrase as a whole confirm that Contracting Parties may be responsible for 116

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Article IX 46–48 merits judgment in the (Bosnian) Genocide case.124 Once that is accepted, the inclusion of the clause is perhaps of lesser relevance for the interpretation of Article IX than might be assumed: it no doubt serves a declaratory function, clarifying that disputes in the sense of Article IX can involve questions ‘relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III’. However, this hardly expands (nor less restricts) the scope of the Court’s jurisdiction: since the early days of international adjudication, it has been accepted that questions relating to responsibility for treaty breaches are disputes relating to the ‘application’ of a particular Convention and thus covered by compromissory clauses.125 In other words, even without a special clause, a dispute ‘relating to the responsibility of a State for genocide’ would be a dispute ‘relating to the interpretation, application or fulfilment of the present Convention’ and thus covered by Article IX.126 47 In his Separate Opinion in the (Bosnian) Genocide case, Judge Tomka suggested the express reference to disputes relating to responsibility would have been required because of the criminal nature of genocide, which the Court otherwise might not have been competent to address. In his assessment, the special clause recognised ‘the power of the Court to determine that in a particular case a State has to bear the consequences of a crime of genocide, committed by an individual found to be criminally liable, because a certain relationship between the individual perpetrator of the genocide and the State in question.’127

Whether this ‘power’ it had to be recognised expressly may be a matter for debate. That it exists indeed seems agreed. 4. No further preconditions 48

Finally, Article IX is also relevant for what it does not say. Notably, it does not make recourse to the ICJ dependent on other conditions. A quick glance at other compromissory clauses suggests that such other conditions are indeed very common, and over time have become more common. Three types of such ‘further conditions’ may be mentioned by way of illustration. First, many treaties require a prior attempt to settle the dispute by diplomacy, or the passage of time after the dispute has arisen, before permitting recourse to binding dispute resolution.128 Second, many treaties offer a choice of binding dispute settlement procedures. Some expressly allow the parties to agree on some other form of dispute resolution genocide and the other acts enumerated in Article III of the Convention.’ (ICJ Reports 2007, 43, para. 169). 124 For details see Article I, mns 51–81. 125 See PCIJ, Chorzo ´ w Factory case, Ser. A, No. 9, 21: ‘It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself. Differences relating to reparations which may be due by reason of failure to apply a convention are consequently differences relating to its application.’ 126 Kolb, Scope Ratione Materiae, in: Gaeta, Genocide Convention, 468–9. 127 Bosnian Genocide case (merits), separate opinion of Judge Tomka, ICJ Reports 2007, 310. 128 See e. g. Article I of the Optional Protocol to the Vienna Convention on Diplomatic Relations (500 UNTS 241), which refers to disputes ‘between the High Contracting Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy’ (emphasis added).

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(such as arbitration). Others envisage a hierarchy between binding dispute settlement options, for instance with arbitration as the default choice and ICJ proceedings as the alternative should the parties fail to agree on the arbitral process.129 Third, increasingly compromissory clauses set up dispute resolution mechanisms that are optional – in other words that require acceptance, or that permit states to opt out of binding dispute resolution altogether by way of simple declaration – that is, without the need to enter a reservation.130 A provision that combines all three of these options is Article 27 of the 2004 UN Convention on Jurisdictional of States and Their Property,131 which runs as follows: ‘Article 27 1. States Parties shall endeavour to settle disputes concerning the interpretation or application of the present Convention through negotiation. 2. Any dispute between two or more States Parties concerning the interpretation or application of the present Convention which cannot be settled through negotiation within six months shall, at the request of any of those States Parties, be submitted to arbitration. If, six months after the date of the request for arbitration, those States Parties are unable to agree on the organization of the arbitration, any of those States Parties may refer the dispute to the International Court of Justice by request in accordance with the Statute of the Court. 3. Each State Party may, at the time of signature, ratification, acceptance or approval or, of accession to, the present Convention, declare that it does not consider itself bound by paragraph 2. The other States Parties shall not be bound by paragraph 2 with respect to any State Party which has made such a declaration. 4. Any State Party that has made a declaration in accordance with paragraph 3 may at any time withdraw that declaration by notification to the Secretary-General of the United Nations.’

As is clear, by comparison, Article IX is a straightforward compromissory clause 49 that views the ICJ as the only and immediately available forum for dispute settlement. At the time of drafting, this indeed seemed the most natural approach, as treaties concluded between World War I and the 1960 s envisaged dispute settlement by the PCIJ or ICJ almost as a matter of course.132 From the travaux, it is clear that at the time, it was taken for granted that the Genocide Convention should follow the (then) standard approach. Since 1948, states have become much more cautious in drafting treaty clauses, and much more inclined to set up specialised mechanisms for monitoring and scrutinising treaty compliance. Both developments are reflected in the design of dispute settlement provisions of the major ‘world order treaties’ agreed since 1948. As regards the Genocide Convention, the cautious attitude of states has resulted in a considerable number of reservations entered with respect to Article IX.133 Yet outside that particular field, Article IX remains unaffected by subsequent developments in treaty drafting: an increasingly rare example of a straightforward compromissory clause.

129 The most prominent example is Article 287 of the UN Law of the Sea Convention, which mentions four alternative modes of binding dispute resolution. Further flexibility is provided by Articles 281, 282. 130 Examples are given by Tams, Compromissory Clauses, 477–8. 131 For comment see the analysis by Tams, in: O’Keefe/Tams, UN Convention on Jurisdictional Immunities. 132 Trends are assessed in Tams, Compromissory Clauses, 461. 133 No less than 17 state parties have made such reservations: see the information provided in Annex 4 and the special commentary on Reservations, mns 35–44.

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Article IX 50–52 III. The outcome of ICJ proceedings 50 Proceedings before the ICJ, unless settled by the parties, result in a binding judgment. Where the respondent state raises preliminary objections (notably disputing the Court’s jurisdiction), the Court addresses them in a separate judgment before beginning to hear the merits of the claim. ICJ judgments are final134 and subject only to subsequent proceedings relating to revision (in the light of new facts) or interpretation (to resolve uncertainties as to the meaning of the Court’s judgment).135 The content of the judgment depends on the nature of the parties’ submissions and the outcome of the Court’s deliberations. If it has no jurisdiction or if the claims are inadmissible, the Court will dismiss the case (as happened for instance in Legality of Use of Force cases). If an application alleging violations of the Genocide Convention is unfounded, the case will be dismissed on the merits. If the applicant’s claims are (partially) well-founded, the Court will declare that conduct by the responding state has violated the Convention (as happened in the Bosnian Genocide case). 51 In addition to a declaration of illegality, applicants often request the Court to pronounce on the consequences of such a breach, or remedies. Neither the Genocide Convention nor the ICJ Statute or Rules spell out the remedies available in ICJ proceedings relating to genocide; yet as noted above, such claims are encompassed by the Court’s jurisdiction under Article IX.136 The substantive regime of remedies forms part of the general rules of state responsibility, as set out in the 2001 ILC Articles on the Responsibility of States for Internationally Wrongful Acts (ASR).137 Part Two of these Articles in essence provides for two obligations. First, states responsible for breaches of international law are obliged to cease wrongful conduct that is on-going; and in exceptional cases – for example in the case of repeated breaches – may also be required to ‘offer appropriate assurances and guarantees of non-repetition’.138 Second, the law of state responsibility requires responsible states to make reparation, aimed at ‘wip[ing] out all the consequences of the illegal act’.139 While the meaning of cessation is typically clear – breaches of the Convention must be brought to an end – reparation requires some further clarification. 52 As set out in the ASR, depending on the circumstances, reparation may consist of restitution, compensation and/or satisfaction. Which of these is applicable primarily depends on the character of the wrongful act. Pursuant to Article 35 ASR, restitu134

Article 59 ICJ Statute. See Articles 60, 61 ICJ Statute. As far as jurisdiction under Article IX is concerned, the proceedings in Application for Revision (ICJ Reports 2003, 7) provide an example in point. 136 Supra, mn. 46. 137 YbILC 2001, vol. II/2, 31. 138 See Article 30 lit. (a) and (b) ASR. As the ILC notes in its explanatory commentary to Article 30 ASR (at para. 4), ‘[c]essation is often the main focus of the controversy produced by conduct in breach of an international obligation’ (YbILC 2001, vol. II/2, 89). In proceedings brought under Article IX, applicant states have inevitably claimed that alleged breaches of the Convention must stop. By contrast, guarantees and assurances of non-repetition have so far played a limited role in international proceedings. Intended to provide ‘safeguards against the repetition of the wrongful act … or, when the wrongful act affects … nationals, assurances of better protection of persons and property’ (ILC, commentary to Article 30 ASR, para. 12; YbILC 2001, vol. II/2, 91), they come into play notably where breaches have been repeated and systematic. 139 PCIJ, Chorzo ´w Factory case, Ser. A, No. 9, 47. 135

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tion is designed to ‘re-establish the situation which existed before the wrongful act was committed’. With respect to obligations arising under the Genocide Convention, this might, e. g., involve the return of forcibly transferred children or the rescinding of national amnesty laws covering genocide.140 As clarified by Article 36 ASR, compensation is designed to remedy damages that can be financially assessed and that cannot be made good by way of restitution. As such, it would notably cover losses resulting from acts of genocide as prescribed by Article II. Finally, pursuant to Article 37, satisfaction is the appropriate form of reparation to ‘wipe out’ non-material damage resulting from wrongful conduct. This can take the form of an apology, of guarantees against future breaches, or of an inquiry into the causes of a breach.141 Very frequently, the ICJ has considered its own declaratory judgment itself to amount to satisfaction.142 As appears from the illustrations given in the preceding paragraph, the ICJ’s 53 jurisprudence provides rather little guidance on the specific content of remedies for breaches of the Convention. This reflects the fact that despite the considerable number of cases instituted under Article IX, the Court, as of today, has only upheld applicants’ claims on the merits in one single case, namely the (Bosnian) Genocide case. In addressing remedies, the Court was guided by the ILC’s Articles on State Responsibility. In pronouncing on the remedies owed for the particular breach found to have taken place in that case – viz. failure to prevent and punish genocide – its approach however was noteworthy: in particular the FRY’s failure to prevent genocide from occurring did not trigger a duty to make financial compensation for the losses.143 In the view of the Court, as it had not been shown that through active conduct, the FRY could have stopped the genocide at Srebrenica, there was no ‘causal nexus between the Respondent’s violation of its obligation of prevention and the damage resulting from the genocide’; hence ‘financial compensation is not the appropriate form of reparation for the breach of the obligation to prevent genocide’.144 The finding, while closely tied to the facts of the case, may suggest that where states violate their duty to prevent genocide, tangible remedies may be difficult to obtain. By contrast, in dealing with the failure to punish suspected ge´nocidaires, the Court was more specific, demanding, in the dispositif, that Serbia ‘transfer individuals accused of genocide or any of those other acts for trial by the International Criminal Tribunal for the former Yugoslavia, and … co-operate fully with that Tribunal’.145 Finally, it is worth noting that even where ICJ judgments obtained on the basis of 54 Article IX order remedies like restitution or compensation, they are typically declaratory: the Court decides that a particular remedy is owed. Unlike in domestic systems of judicial procedure, the ICJ Statute sets up no institutional mechanisms for the execution of judgments. Under Article 94 para. 2 of the UN Charter, the UN

140 For further examples, see the ILC’s commentary to Article 35 ASR (YbILC 2001, vol. II/2, 96–8). 141 See the ILC’s commentary to Article 37 ASR for details (YbILC 2001, vol. II/2, 105–7). 142 See e. g. Corfu Channel case, ICJ Reports 1949, 4, 35–6; and (for proceedings under Article IX), Bosnian Genocide case (merits), ICJ Reports 2007, 43, para. 463. 143 Bosnian Genocide case, ICJ Reports 2007, 43, paras 461–2. 144 Bosnian Genocide case, ICJ Reports 2007, 43, para. 462. 145 Bosnian Genocide case, ICJ Reports 2007, 43, para. 471(8).

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Article IX 54, 55 Security Council can enforce judgments,146 but it has so far not made use of this potential. Compliance with ICJ judgments therefore is a matter largely left to the parties, or to international pressure. Nevertheless, compliance only exceptionally is a problem as in most cases states have accepted adverse judgments by the Court.147 In the case of Article IX, the finding that a particular state has violated the Genocide Convention will carry a particular weight.

D. Concluding observations 55 Article IX is a central element in the Convention’s enforcement regime. It reflects the Convention’s origins in an era in which provisions for inter-state dispute settlement before the ICJ were considered the norm. Were the Convention to be negotiated today, it is unlikely that states should agree on an enforcement system relying exclusively on inter-state enforcement, and placing so much emphasis on the ICJ. Concerns about state sovereignty, and too powerful a role for the ICJ, are reflected in the large number of reservations made against Article IX. In practice, parties to the Convention have not made frequent use of Article IX; however that may be about to change. In the first two decades since its entry into force, no cases were brought under the provision. Since then, the provision has been used, but practice shows that cases relating to genocide – at least where breaches of Article I are alleged – pose particular challenges. In the one case that has been decided on the merits, the ICJ rendered a balanced judgment; however the circumstances of the proceedings have affected the ICJ’s impact as a dispute settler. Experience so far suggests that, contrary to what Article IX may suggest, disputes relating to genocide are in practice addressed ‘out of court’; while the ICJ can get involved in the dispute settlement process at a later stage. By contrast, even in the absence of a regular jurisprudence, the ICJ – through cases brought under Article IX – has been able to contribute in important measure to the interpretation and clarification of the Convention’s provisions. The Bosnian Genocide case in particular has shown it to be a rather important ‘agent of legal development’148 of the Convention’s rules. Its pronouncements, though formally binding only inter partes, have become part of the wider interpretative process and enjoy considerable authority. This indirect effect may be as important as the Court’s role as a dispute settler. 146 Article 94, para. 2 provides as follows: ‘If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give to the judgment.’ 147 For much more on this see Schulte, Compliance with ICJ Decisions; Oellers-Frahm, in: Zimmermann/Tomuschat/Oellers-Frahm/Tams, Statute of the ICJ (2nd ed.), Articles 94, 186. 148 See the title of Sir Franklin Berman’s contribution to Tams/Sloan, Development of Int’l Law by the ICJ, 7.

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Reservations to the Convention Table of Contents: A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Background: the general regime of reservations . . . . . . . . . . . . . . . . . . . . . . . . . . . I. The ICJ’s Reservations opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. The contemporary regime. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Distinguishing reservations from related statements. . . . . . . . . . . . . . . . . 2. Permissible and impermissible reservations; the ‘compatibility test’ 3. Effects of permissible reservations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Effects of impermissible reservations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Procedural matters; withdrawal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Assessing reservations made in respect of the Genocide Convention . . I. Distinguishing reservations from other unilateral statements . . . . . . . . II. Assessing reservations proper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. No general prohibition against reservations. . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Compatibility of selected reservations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. Reservations seeking to exclude or modify ICJ dispute settlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Reservations seeking to protect the domestic legal order . . . . . . . . 3. Legal effects of reservations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Withdrawal of reservations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D. Concluding observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

mn. 1 3 4 6 7 9 13 15 21 24 25 30 31 34 35 45 49 53 55

A. Introduction The Genocide Convention does not mention reservations expressly, and yet they 1 are important to an understanding of the specific rights and obligations imposed upon states. By means of a reservation, a treaty party can seek to ‘exclude or to modify the legal effect of certain provisions of the treaty in their application to that State’.1 That international law should permit such unilateral exclusions or modifications is not without problems. However, the general law of treaties (which applies to the Genocide Convention as customary international law) accepts this proposition within limits. In fact, the general regime for reservations was heavily influenced by the ICJ’s advisory opinion in Reservations to the Genocide Convention;2 there is a close link between the law of reservations and the Convention. The Genocide Convention is more than a catalyst for developments though, and 2 the topic of reservation is of more than historical relevance to its study. State parties to the Convention have made use of their options under the general law of treaties: as detailed in the Annex 4, there is a considerable body of reservations, other unilateral statements and responses, whereby states have sought to shape the specific content of their obligations under the Convention. Predictably, these statements do not concern all of the Convention’s provisions in equal measure; they relate to Articles VI, IX, XII and VI in particular. While not all of them qualify as reservations in the above-mentioned sense,3 and while not all reservations are 1

Article 2 para. 1 lit. (d) VCLT. ICJ Reports 1951, 15. 3 Infra, mns 25–9. 2

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necessarily valid, in their entirety,4 these unilateral statements have the potential to affect relevant aspects of the Convention’s regime, and its enforcement in particular. This justifies a brief discussion in a work otherwise organised around the Convention’s express provisions.

B. Background: the general regime of reservations 3 Reservations to the Genocide Convention are governed by the general regime of reservations.5 This regime forms part of the general law of treaties. Essential aspects are laid down in Articles 19 to 23 VCLT, whose flexible approach reflects customary international law6 and as such applies to the Genocide Convention.7 At the time of their formulation, Articles 19 to 23 confirmed and concretised the pre-existing law, shaped, amongst other things, by the ICJ’s 1951 Reservations opinion.8 Since the adoption of the Convention in 1969, the international community has gradually accepted and ‘internalised’ the general regime, grappled with its implications and sought to address gaps and inconsistencies. In this process, the UN International Law Commission’s work on reservations to treaties has been most influential. Its voluminous ‘Guide to Practice’,9 completed in 2011, addresses many of the more pressing questions, provides useful orientation and will be drawn upon in the following. I. The ICJ’s Reservations opinion 4 The ICJ’s Reservations opinion of 1951 marked the beginning of the contemporary approach the reservations.10 In it, the Court was called upon to assess the legal relevance of reservations to the Convention (notably those made with respect to Article IX). A majority of the Court agreed on two fundamental propositions. First, the Court held that if a state had made a reservation to a Convention to which some (but not all) other parties had objected, the reserving state could become a party to the Convention, as long as its reservation was compatible with the treaty’s object and purpose.11 This moved away from the traditional approach largely followed in the inter-war period, pursuant to which a reservation had to be accepted by all other treaty parties.12 Instead of acceptance, what was henceforth required was an absence of 4

Infra, mns 34–48. Literature is abundant. The ILC’s Guide to Practice (in UN Doc. A/66/10, 19 and – with commentaries, comprising 630 pages – UN Doc A/66/10/Add. 1) is the most comprehensive attempt at spelling out detailed rules and is drawn upon below. Horn, Reservations, presents a wealth of material. For clear accounts of the general regime see notably Aust, Modern Treaty Law and Practice (2nd ed.), 125–62; Swaine, in: Hollis, Oxford Guide to Treaties 277; Giegerich, Reservations, in: MPEPIL; and the treatment of Articles 19–23 VCLT in the VCLT Commentaries by Villiger, Corteu/Klein and Do¨rr/Schmalenbach. For comment on reservations to human rights and other public interest treaties see e. g. Schabas, CanYbIL 32 (1994), 39; Lijnzaad, Reservations to UN-Human Rights Treaties. 6 Villiger, Commentary on the VLCT, 325; Walter, in: Do ¨ rr/Schmalenbach, VCLT Commentary, 285. 7 See Article 4 VCLT (providing for non-retroactivity of the VCLT regime). 8 ICJ Reports 1951, 15. 9 UN Doc. A/66/10, 19. 10 For useful background see Del Mar, in: Gaeta, Genocide Convention, 499–503. 11 ICJ Reports 1951, 15, 24–7. 12 See Walter, in: Do ¨ rr/Schmalenbach, VCLT Commentary, Article 19, mns 10–2 (noting that ‘this [traditional] position was practiced consistently throughout the League of Nations period’. As 5

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unanimous protest. Moreover, the Reservations opinion introduced what since then has become the decisive element of the law on reservation, viz. ‘compatibility test’. Second, the ICJ held that if a state considered a reservation, made by another state, 5 to be incompatible, it could say so and consider the other state not to have become bound by the treaty.13 This seemed the obvious consequence of the first proposition and was considered the best way of dealing with reservations. In the words of the Court, ‘it is the compatibility of a reservation with the object and purpose of a Convention that must furnish the criteria for the attitude of a State in making the reservation on accession as well as for the appraisal by a State in objecting to the reservation’.14 Conversely, other states could also accept reservations and consider the reserving state to have become a party to the treaty (which would be modified by the reservation). This approach meant that reservations would largely be assessed by other states; the law of reservations became ‘inter-subjective’.15

II. The contemporary regime Since 1951, the position formulated, in relation to the Genocide Convention, by 6 the ICJ has been generalised16 and gradually accepted.17 Today it is no longer in doubt that international law in principle accepts reservations to multilateral treaties (even where these have not been unanimously approved), but that it restricts the freedom of states to make them. It is also agreed that although reservations are to be made unilaterally, they do not automatically modify or exclude treaty obligations, but can be objected to. Articles 19 to 23 VCLT seek to strike a balance between treaty integrity and voluntarism and lay down procedural rules governing the making of reservations and objections. While the VCLT regime is generally held to reflect customary international law, it has, since 1969, been applied and adapted to new challenges. On the basis of the VCLT and the ILC’s Guide, and considering Walter notes in mns 13–5, the traditional approach did not go unchallenged; notably PanAmerican practice deviated (and foreshadowed the contemporary regime). 13 ICJ Reports 1951, 15, 26–7 14 ICJ Reports 1951, 15, 24. 15 As an indirect consequence, the role of the depositary was much reduced: rather than performing any form of screening function, he would be ‘confined to receiving reservations and objections and notifying them’ (ICJ Reports 1951, 15, 27). See Article XVII, mns 10–1, for brief comment. 16 Whether the Court ever intended to formulate a general rule is disputed: see e. g. Berman, in: Tams/Sloan, Development of Int’l Law by the ICJ, 18: ‘In Reservations to the Genocide Convention, the Court decided (if somewhat Delphically) that a state ratifying that treaty subject to a reservation could be regarded as a party if the reservation was compatible with the object and purpose of the treaty, but not otherwise. It supported this finding on the basis of ‘the special characteristics of the Genocide Convention’ … [Yet shortly] thereafter, the flexible regime derived from the Court’s Opinion had been applied, in the Vienna Convention on the Law of Treaties, to all treaties (with only limited exceptions). Then, as the manifest problems resulting from that mounted up, we began to hear that, whatever the merits of the Vienna Convention’s flexible regime might be, it wasn’t really suited to the very type of treaty which the ICJ held was the justification for it, ie human rights treaties.’ 17 As noted by Villiger (Commentary on the VLCT, 325): ‘On the whole, it appears that the Court’s 1951 Reservations to Genocide Advisory Opinion considerably altered traditional views on reservations’. LeBlanc goes further, noting that ‘[e]ventually, everyone came to embrace the Court’s new doctrine, even for general application, as signified by the opinion’s enshrining in the reservation provisions of the Vienna Convention on the Law of Treaties of 1969, now regarded as embodying the most widely accepted rules of treaty law’ (WisconsinILJ 6 (1987), 59).

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the particular problems posed by reservations to the Genocide Convention, the contemporary regime of reservations can be summarised in five propositions. 1. Distinguishing reservations from related statements 7

Reservations need to be distinguished from other unilateral statements relating to a particular treaty. In its Article 2, para. 1 lit. (d), the Vienna Convention sets out what has been accepted as the general definition of a reservation: ‘[R]eservation’ means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.’

Thus defined, reservations notably need to be distinguished from interpretative statements ‘whereby [a] State … purports to specify or clarify the meaning or scope of a treaty or of certain of its provisions’.18 Such interpretative statements are not subject to the restrictions applicable to reservations.19 They do not seek to change a state’s obligations, but to explain their meaning. Such declarations can be made at any time and need not be scrutinised for their ‘validity’. They can inform the interpretation of a treaty in line with the general rules of interpretation as set out in Articles 31 to 33 VCLT,20 but the declaring state remains bound by the treaty in full. While the designation (as ‘declaration’ or ‘reservation’, respectively) may be a starting-point, the distinction depends on the intended effect of the statement.21 8 Furthermore, upon becoming bound by a treaty, states often make other declarations which are not intended to have any legal effect on the particular treaty, but, for example, express their general views on the subject-matter, or seek to preserve their position under other rules of international law.22 Just as interpretative declarations, these statements are permitted; but they do not purport immediately to affect rights and obligations under the treaty and they are not governed by the regime of reservations. 2. Permissible and impermissible reservations; the ‘compatibility test’ 9

States are in principle free to make reservations, but their freedom is not unlimited. In formulating the rule and its exceptions, international law seeks to strike the balance between the interest in the integrity of treaty relations on the one hand, and the need for flexibility on the other. According to Article 19 VCLT (which reflects customary international law), ‘A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless: (a) the reservation is prohibited by the treaty; (b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or (c) in cases not falling under subparagraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.’ 18

ILC Guide to Practice, Guideline 1.2. ‘Conditional interpretative declarations’ present a special case, though: through them, the declaring state ‘subjects its consent to be bound by the treaty to a specific interpretation of the treaty or of certain provisions thereof’; this justifies to treat them as a reservation subject to the rules detailed in the following: see Guideline 1.4 of the ILC’s Guide. 20 See Introduction, mns 29–38, for general considerations on the interpretation of the Convention. 21 See ILC Guide to Practice, Guidelines 1.3., 1.3.1. and 1.3.2. 22 Aust, Modern Treaty Law and Practice (2nd ed.), 129. 19

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While the first two of these restrictions are fairly straightforward, the third one 10 (compatibility) is complex and crucial. Its application poses major problems as the object and purpose of a treaty is not always easy to identify.23 The ILC’s attempts to specify the compatibility test testify to that. According to Guidelines 3.1.5 and 3.1.5.1., ‘[a] reservation is incompatible with the object and purpose of the treaty if it affects an essential element of the treaty that is necessary to its general tenour, in such a way that the reservation impairs the raison d’eˆtre of the treaty.’ ‘The object and purpose of the treaty is to be determined in good faith, taking account of the terms of the treaty in their context, in particular the title and the preamble of the treaty. Recourse may also be had to the preparatory work of the treaty and the circumstances of its conclusion and, where appropriate, the subsequent practice of the parties.’

As this remains elusive, a number of other Guidelines seek to provide guidance on 11 whether particular types of reservations meet the compatibility test.24 With respect to the Genocide Convention, two of them are of particular relevance. First, reservations relating to the internal law of the reserving state are viewed as problematic: ‘A reservation by which a State or an international organization purports to exclude or to modify the legal effect of certain provisions of a treaty or of the treaty as a whole in order to preserve the integrity of specific rules of the internal law of that State or of specific rules of that organization in force at the time of the formulation of the reservation may be formulated only insofar as it does not affect an essential element of the treaty nor its general tenour.’25

Second, a reservation to dispute settlement provisions (on which much of the 12 debate centres26) ‘is not in itself incompatible with the object and purpose of the treaty’.27 However, a different view is warranted if ‘(i) the reservation purports to exclude or modify the legal effect of a provision of the treaty essential to its raison d’eˆtre; or (ii) the reservation has the effect of excluding the reserving State or international organization from a dispute settlement or treaty implementation monitoring mechanism with respect to a treaty provision that it has previously accepted, if the very purpose of the treaty is to put such a mechanism into effect.’28

3. Effects of permissible reservations Where a reservation is permissible, its effects depend on the reaction by other 13 treaty parties.29 These other states can accept or object to a reservation; if they do

23 Aust, Modern Treaty Law and Practice (2nd ed.), 138. As Giegerich notes, ‘[t]he object and purpose standard in Article 19 (c) VCLT … is to protect against destruction from within … the core contents or basic structure or essential provisions indispensable to the general architecture of the treaty’ (Reservations, in: MPEPIL, para. 10). 24 For a succinct account see Aust, Modern Treaty Law and Practice (2nd ed.), 136–8; for a detailed exposition Walter, in: Do¨rr/Schmalenbach, VCLT Commentary, Article 19, mns 66–114. 25 ILC Guide to Practice, Guideline 3.1.5.5. 26 See infra, mns 35–44. 27 ILC Guide to Practice, Guideline 3.1.5.7. 28 ILC Guide to Practice, Guideline 3.1.5.7. 29 In the words of one commentator, the reserving treaty party ‘makes an offer which is subject to acceptance by the other contracting states’ (Aust, Modern Treaty Law and Practice (2nd ed.), 139). Article 20 para. 1 VCLT provides for an exceptions if the reservation is explicitly permitted.

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not respond within twelve months, they are considered to have accepted.30 The general regime distinguishes between two relevant scenarios:31 (i) If a reservation is accepted, the treaty enters into force between the reserving and the accepting state. However, the reservation modifies the treaty between the reserving and accepting states, and it does so with reciprocal effect, so that the ‘accepting state’ profits from the reservation as well.32 (ii) A reservation that is objected to by another does not take effect in the treaty relations between the two states; it ‘precludes the reservation from having its intended effects as against [the objecting] State’.33 If the objecting state clearly says so, it can preclude the entry into force between the reserving state and itself. If no such intention is expressed, the treaty enters into force, but without the provisions to which the reservation relates.34 14 As is clear from this summary, the contemporary regime (shaped by the ICJ’s Reservations opinion35) emphasis the relevance of responses, by other state parties, to a reservation. Depending on the response, a multilateral treaty may end up being fragmented, with different sets of rights and obligations applicable between pairs of reserving and objecting states.36 Perhaps most importantly, while objections are important, their effect is limited in that they cannot ‘unmake’ the reservation and hold the reserving state to the terms of the treaty in its entirety. Put differently, even where an objection is lodged, the reserving state will be successful in excluding the provision it considers problematic. This may explain why, even in relation to major multilateral treaties, objections have not become a regular feature; only a few states lodge objections at all, and ‘even in the best-managed [foreign ministries], reservations are not always given the attention they deserve’.37 4. Effects of impermissible reservations 15

If a reservation is impermissible (because it is precluded or because it is incompatible with a treaty’s object and purpose), the reaction by other treaty parties in theory is not decisive.38 Invalid reservations are (in the words of the ILC’s Guide) ‘null and

30 Article 20 para. 5 VCLT. The subsequent considerations apply to general multilateral treaties (including the Genocide Convention). Article 20 paras 2 and 3 VCLT sets outs special rules for socalled ‘plurilateral treaties’ (with a small number of parties and for treaties establishing international organisations. Neither clause is of relevance to the Genocide Convention. 31 See furthermore Article 21, para. 4 lit. (c) VCLT, providing that if all other state parties object to a reservation, the reserving state’s does not become a party to the treaty. In major multilateral treaties, this is a near impossibility. 32 Article 21 para. 1 VCLT; ILC Guide to Practice, Guideline 4.2.4. 33 ILC Guide to Practice, Guideline 4.3. 34 Article 21 para. 4 lit. (b) VCLT and Guidelines 4.3. 4.3.1 and 4.3.6 of the ILC’s Guide to Practice. 35 Supra, mns 4–5. 36 As was observed, these were the ‘hazards inherent in [the Court’s approach in the Reservations opinion], which could ‘entail a veritable web of diverse reciprocal commitments within the framework of a multilateral convention’ (Congo Rwanda case, joint separate opinion, ICJ Reports 2006, 65, para. 9). 37 Aust, Modern Treaty Law and Practice (2nd ed.), 142. 38 The approach described in the following (which has become dominant over time, not the least because the ILC espoused it), is often referred to as the ‘permissibility approach’ and juxtaposed to the ‘opposability approach’ (emphasising the role of objections in relations to incompatible reservations). For a clear assessment see Swaine, in: Hollis, Oxford Guide to Treaties, 285–90.

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void, and therefore devoid of any legal effect’.39 What is more, ‘[t]he nullity of an invalid reservation does not depend on the objection … by another State’; it is an automatic result.40 (Conversely, invalidity cannot be ‘cured’ by acceptance.) This approach is relatively straightforward to apply if a treaty prohibits all or at least certain reservations. However, it faces major practical challenges where a reservation is said to be incompatible with a treaty’s object and purpose. Because that test is so elusive, the draconian legal effect – nullity of the reservation – depends on a highly indeterminate condition. In order to make the compatibility test workable, it is useful, indeed necessary, to rely on pronouncements by other interested actors. Among such ‘interested actors’, other treaty parties, dispute settlement institutions and treaty monitoring bodies are particularly relevant.41 All of these are entitled to pronounce on the compatibility of reservations; in fact, other treaty parties (although their response is not determinative42), are encouraged to do so. In the words of the ILC, ‘a State … which considers that a reservation is invalid should formulate a reasoned objection as soon as possible’.43 This exhortation shows that objections are seen as a ‘tool’ in rendering the rule against invalid reservations effective. As only few states make use of their options and regularly scrutinise reservations 16 made by other states, practical challenges remain very real, especially in treaty regimes with large numbers of parties. This in turn explains the attraction of impartial pronouncements by international courts and treaty bodies.44 Under the general regime of reservations as set out by the ILC, pronouncements by such bodies are not necessarily conclusive; their assessment ‘has no greater legal effect than that of the act [that is of a judgment producing inter partes effect, or of a nonbinding ‘view’] which contains it’.45 Still, in a system lacking objective ‘assessors’, the assessment, by a court or treaty body, will almost inevitably carry great weight, including for those treaty parties not involved in the proceedings.46 Just as with respect to the interpretation and development of international law, a pronouncement, by a court, on one particular reservation could be said to have the value of a ‘persuasive precedent’ in relation to identical or similar reservations formulated by other parties.47 To state that incompatible reservations are null and void is only the first of two 17 steps, though. The consequences of invalidity need to be addressed as well. On this, the Vienna regime is silent;48 and the approach adopted in the ILC’s Guide, while 39

ILC Guide to Practice, Guideline 4.5.1. ILC Guide to Practice, Guidelines 4.5.2.1. 41 See ILC Guide to Practice, Guideline 3.2. 42 See ILC Guide to Practice, Guidelines 4.5.1 and 4.5.2. 43 ILC Guide to Practice, Guideline 4.5.2. 44 For detailed debate see Flauss, RTDH 12 (2001), 221; Bernhardt, in: Liber Amicorum Oda, vol. I, 369; Cameron/Horn, GYIL 33 (1990), 69, provide for an early assessment. 45 ILC Guide to Practice, Guideline 3.2.1.(2). 46 In fact, Guideline 3.2.3 of the ILC’s Guide to Practice goes further by suggesting that even ‘States … that have formulated reservations to a treaty establishing a treaty monitoring body shall give consideration to that body’s assessment of the permissibility of the reservations.’ 47 See Article IX, mn. 10, for brief comment on the impact of courts on the development of international law, and the Convention in particular. 48 Notably, Article 21 VCLT (regulating effects of permissible reservations) does not apply, as an incompatible reservation has not been ‘established’: see Giegerich, Reservations, in: MPEPIL, para. 20. 40

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presenting a real advance, will need to be tested in practice.49 One thing is clear though: where a reservation is incompatible and ‘devoid of any legal effect’,50 it cannot modify the treaty relations of the reserving state. This leaves two options: first, the reserving state may simply not be a party to the treaty;51 or second, it may be bound by the treaty, but without the benefit of the incompatible reservation.52 The former result would accommodate the idea of state consent informing Articles 19 to 23 VCLT. However, as Giegerich notes, ‘it eliminates any serious legal risk for the reserving party which [need] expect nothing worse than ending up not being a party to the treaty’.53 Especially for treaties that aspire at universal membership, this restricts the options for other state parties. In fact, it does so (dare one say?) ‘severely’: even where other states consider a particular reservation to be incompatible, they might not want to treat the reserving state as a non-party altogether – so why object in the first place?54 18 Not surprisingly, there have been attempts to introduce variations of severability. At the regional level, the European Court of Human Rights has declared particular reservations invalid and held the reserving state to account in relation to the Convention as a whole.55 In the 1990 s, the Human Rights Committee put forward a similar argument,56 but was criticised by CCPR parties which considered this to be a step too far on the way towards a central scrutiny procedure.57 In the ILC, the matter was discussed at length, before the Commission moved towards a compromise solution seeking to combine consensualism and the need for a reservations regime with ‘teeth’.58 That compromise is contained in Guideline 4.5.3, which provides: ‘1. The status of the author of an invalid reservation in relation to a treaty depends on the intention expressed by the reserving State … on whether it intends to be bound by the treaty without the benefit of the reservation or whether it considers that it is not bound by the treaty. 2. Unless the author of the invalid reservation has expressed a contrary intention or such an intention is otherwise established, it is considered a contracting State … without the benefit of the reservation. 3. Notwithstanding paragraphs 1 and 2, the author of the invalid reservation may express at any time its intention not to be bound by the treaty without the benefit of the reservation. 4. If a treaty monitoring body expresses the view that a reservation is invalid and the reserving State … intends not to be bound by the treaty without the benefit of the reservation, it should express its intention to that effect within a period of twelve months from the date at which the treaty monitoring body made its assessment.’ 49

This is recognised by the Special Rapporteur: see Pellet, EJIL 24 (2013), 1093. ILC Guide to Practice, Guideline 4.5.1. 51 This has been referred to as the ‘backlash theory’ or ‘total invalidity approach’: see Cameron/ Horn, GYIL 33 (1990), 115; Giegerich, Reservations, in: MPEPIL, para. 21, respectively. 52 Typically referred to as an instance of ‘severability’: see Cameron/Horn, GYIL 33 (1990), 115; Aust, Modern Treaty Law and Practice (2nd ed.), 145. 53 Giegerich, Reservations, in: MPEPIL, para 22. 54 Swaine, in: Hollis, Oxford Guide to Treaties, 297; Giegerich, Reservations, in: MPEPIL, para. 22. 55 See e. g. ECtHR, Belilos v. Switzerland, Series A, vol. 132, paras 50–60; Loizidou v. Turkey (Preliminary Objections), Series A, vol. 310, paras 76–7. 56 See General Comment No. 24 (in UN Doc. A/50/40, vol. I, Annex IV), para. 18: ‘The normal consequence of an unacceptable reservation is not that the Covenant will not be in effect at all for a reserving party. Rather, such a reservation will generally be severable, in the sense that the Covenant will be operative for the reserving party without benefit of the reservation.’ 57 See notably the critical remarks by the United States, the United Kingdom and France, reproduced in UN Doc. A/50/40, vol. I, Annex VI. 58 Swaine provides a useful assessment: Swaine, in: Hollis, Oxford Guide to Treaties, 295–8. 50

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In essence, this proceeds from a consensual position (para. 1), before introducing 19 a presumption in favour of severability (para. 2) and qualifying it by granting the reserving state a right to ‘opt out’ of the treaty – which is to be exercised 12 months after a treaty monitoring body has recognised invalidity of a reservation (para. 4), but can be exercised permanently otherwise, such as in treaty regimes envisaging the decentralised control of reservations by treaty parties (para. 3). As is clear from the description, the ILC’s Guide seeks to specify and clarify the 20 law in what is undoubtedly a grey area. State comments on the ILC’s Guide so far suggest that the presumption in favour of severability may be overly ambitious.59 Certainly, it has yet to sink in before producing effects and cannot be simply applied to treaties adopted prior to the completion of the ILC’s work (in which reservations have been submitted over long periods of time). As a consequence, further time may still have to lapse before the uncertainties relating to incompatible reservations are fully resolved. The ILC’s Guide points a meaningful way out of the dilemma, but, as regards its approach to severability, does not yet reflect settled practice. In the interim, the effects of incompatible reservations remain a matter of controversy. 5. Procedural matters; withdrawal In order to ensure clarity and predictability, reservations and objections are to be 21 made in writing. They must be made at the outset, when a state declares its intention to be bound: hence Article 19 VCLT, reflecting general international law, refers to reservations formulated ‘when signing, ratifying, accepting, approving or acceding to a treaty’. A further possibility, not mentioned in the VCLT but accepted in practice, is for reservations to be formulated upon succession.60 In practice, depositaries have at times stretched this provision and circulated late reservations; this is problematic and unnecessary.61 As other communications and statements relating to treaties, reservations and 22 objections are to be communicated among treaty parties via the depositary. In terms of the general law of treaties, as spelled out in Article 77, para. 1 VCLT, reservations count among the ‘notifications and communications relating to the treaty’ of which the depositary is to notify actual and potential treaty parties. As the Convention was drafted prior to the standardisation of the depositary functions, it spells them out in Arties XVII to XVIII; these can be construed to encompass depositary action in relation to reservations.62 Following the approach advocated by the ICJ,63 UN practice (not the least under the Genocide Convention) has circumscribed the role and competence of the depositary, notably by clarifying that depositaries are not to perform any substantive scrutiny of whether a reservation is permissible.64

59

See the summary of state comments in the explanatory commentary to Guideline 4.5.3. of the ILC’s Guide to Practice: UN Doc. A/66/10/Add. 1, at 531–3; as well as the material in UN Doc. A/ CN.4/639, paras 131–82. 60 As the notion of ‘succession’ covers many different developments (unification, separation, independence, cessation, etc.), the specifics are of considerable complexity: for details see Guidelines 5.1–5.5 of the ILC’s Guide to Practice. 61 But see Guidelines 2.3., 2.3.1. and 2.3.2 of the ILC’s Guide to Practice. 62 See Article XVII, mns 4–7. 63 Supra, mn. 5. 64 See Article XVII, mns 10–1.

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Finally, it is worth emphasizing that reservations (and objections) can be withdrawn.65 This is possible any time. The withdrawal takes effect upon notification, but does not depend on any acceptance by other treaty parties.66

C. Assessing reservations made in respect of the Genocide Convention 24 Reservations made in respect of the Genocide Convention are to be assessed in light of the general rules just outlined. This assessment does not take place in the abstract. Not only is there a considerable body of treaty practice, comprising reservations, other unilateral statements and responses. What is more, while the Convention does not deal with them explicitly, reservations were discussed during the drafting process. And of course, contentious and advisory ICJ proceedings have yielded a number of important (if controversial) pronouncements on reservations. Drawing on this evidence, the effects of reservations can be evaluated. The subsequent sections do not aim to provide a comprehensive analysis, but address what are believed to be the most pressing issues arising in relation to the most relevant reservations. I. Distinguishing reservations from other unilateral statements 25 Twenty-seven member states – that is roughly one in five – have made unilateral statements relating to the Genocide Convention.67 Seventeen state parties have registered protests or objections. If statements subsequently withdrawn were included in the count, the figures would be higher still.68 All this seems to suggest that the problem of reservation is a significant one. However, the majority of statements made by parties do not purport to exclude or modify the effects of the Convention; they are ‘mere’ declarations of an interpretative or political character. As noted above, such statements do not implicate the regime of reservations, and in many instances, do not implicate international law at all. Before discussing problems of reservations proper, a brief survey of such ‘other unilateral statements’ is called for. Three categories seem particularly common. 26 First, just as under other multilateral treaties, state parties have at times thought it useful to make political declarations that did not specifically concern the Genocide Convention.69 As under other multilateral treaties,70 Bahrain stated that its accession could not be construed as recognition of the state of Israel (which itself ratified the Convention in 1950). ‘Re-ratifying’ the Convention in 1983, the People Republic of China declared the previous ratification, by the Republic of China, to be ‘illegal and therefore null and void’. More dramatic statements are at times contained in notes sent to the depositary upon ratification or accession by other 65

See Article 22 paras 1 and 2 VCLT. Article 22 para. 3 VCLT. 67 See Annex 4 for a survey. 68 See e. g. infra, mns 53–4, for selective references. 69 Unless specifically noted, unilateral statements referred to in the following are reproduced in Annex 4. 70 Such clauses are common, but do not qualify as reservations. Their legal relevance, if any, concerns the legal regime governing recognition of states: it is in that area, but not relating to provisions of the Genocide Convention, that a particular legal effect (recognition) is meant to be excluded. Aust, Modern Treaty Law and Practice (2nd ed.), 129. The ILC’s Guide to Practice leaves such declarations of non-recognition to a side: see Guideline, 1.5.1. 66

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states: by way of illustration, Cambodia (then represented at the UN by the regime ousted by Vietnamese forces in 1979) considered Vietnam’s accession to the Convention in 1981 to be ‘shameless’ and ‘an arrogant challenge to the international community, which is well aware of … crimes of genocide committed by the Vietnamese army in Kampuchea’.71 None of these political declarations amounts to a reservation; they are examples of (as has been noted) ‘political culture used within juriculture to promote [certain notions of national] public policy’.72 Second, some states have voiced criticism of certain provisions of the Conven- 27 tion, without however excluding or modifying their effect. The distinction between UN member states and other states recognised in Article XI73 has attracted criticism: some states that intended to become bound by the Convention as nonUN members have ‘draw[n] attention to the discriminatory character of article XI of the Convention’.74 By the same token, the drafters’ debate about the legitimacy of Article XII’s colonial clause75 has been rehearsed in unilateral statements: states that did not want a colonial clause in the first place (but were outvoted), have clarified they were ‘not in agreement with article XII of the Convention and consider[ed] that all the provisions of the Convention should extend to Non-Self-Governing Territories, including Trust Territories’.76 Yet as is clear from the wording, these are not reservations. Third, many of unilateral statements made do not amount to reservations, but 28 ‘purpor[t] to specify or clarify the meaning or scope of a treaty or of certain of its provisions’; they are interpretative declarations.77 As noted above, such interpretative declarations may be a relevant factor in the process of treaty interpretation, but do not exclude or modify obligations of the declaring state.78 Article VII has prompted interpretative declarations by states clarifying that domestic (constitutional) law required them to observe the dual criminality requirement79 and/or precluded the extradition of citizens.80 However, these do not modify (let alone exclude) Article VII which requires extradition ‘in accordance with [member state] 71 Note 15, reproduced in the information on the Genocide Convention in the UN treaty database: see http://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%20IV/IV-1.en.pdf. 72 Bunn-Livingstone, Juricultural Pluralism, 227. 73 Pursuant to Article XI, the Convention is open to any ‘Member of the United Nations and … any non-member State which has received an invitation’. See Article XI, mns 8–11, for comment. 74 As put by Mongolia. Similar statements were made by Vietnam and the German Democratic Republic (both of which had to be invited to become a party to the Convention). 75 Pursuant to Article XII, the Convention does not automatically apply to non-metropolitan territories, which gave rise to controversies during the final stages of the drafting process: see Article XII, mns 3–4. 76 As put in the statement by the Ukraine. Similar statements have e. g. been made by Albania, Algeria, Belarus, the Russian Federation (‘carried over’ from the Soviet Union), Poland, Romania, etc. While many formerly socialist states, after 1989, withdrew their reservations to Article IX, statements on Article XII have usually not been withdrawn. Argentina’s statement protesting ‘the application of the Convention to territories under the sovereignty of the Argentine Republic’ (designed to ‘counter’ the United Kingdom’s declaration to extend the Convention to the ‘Falkland Islands and Dependencies’, i. e. South Georgia and the South Sandwich Islands and the British Antarctic Territory) presents a variation to this theme. 77 ILC Guide to Practice, Guideline 1.2. 78 Supra, mns 7–8. 79 Declarations by the United States (para. 3 of the ‘Understandings’) and Malaysia. 80 Declaration by Venezuela. The Declaration by the Philippines is slightly different; it ‘suspended’ the application of Article VII ‘until the Congress of the Philippines has enacted the

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laws and treaties in force’.81 Given the many uncertainties besetting its interpretation, Article II has attracted rather fewer interpretative declarations than might have been expected; but the United States’ declaration clarifies that country’s understanding of the notion of ‘intent to destroy’ and ‘mental harm’82 – but, again, does so in order to clarify the meaning it ascribes to those terms, not to modify the scope of the provision. Finally, a considerable number of unilateral statements relate to Article VI; typically, these statements (made before the renaissance of international criminal justice in the 1990s) seek to safeguard the exclusive territorial jurisdiction of national courts.83 Yet these statements could hardly be said to preclude the exercise of international criminal jurisdiction, which pursuant to Article VI has to be ‘accepted’ by the territorial state.84 As regards the exercise of extraterritorial jurisdiction by foreign national courts, this would be based not on the Convention, but on the universality principle as recognised under general international law, and hence could not be ‘excluded or modified’ through treaty reservations. 29 These considerations suggest that the bulk of unilateral statements made by state parties with respect to the Convention are not reservations. To say so does not solve all issues: interpretative and other declarations pose problems of their own and of course proper reservations need to be assessed. However, the problem of reservations is rather specific; it mainly affects one of the Convention’s provisions. This specific problem can now be addressed.

II. Assessing reservations proper 30

Once unilateral statements not qualifying as reservations are left to one side, (‘proper’) reservations made with respect to the Genocide Convention are fairly limited and very concentrated. In fact, the large majority of reservations are directed against one particular provision, Article IX. In addition, the relationship between the Genocide Convention and domestic law has been the subject of a very sweeping reservation. The subsequent discussion focuses on these two categories of reservations.85 In the light of Article 19 VCLT, it will be inquired whether the Convention prohibits reservations, whether existing reservations are compatible with the Convention’s object and purpose, and how they affect the legal relations between treaty parties. 1. No general prohibition against reservations

31

As a starting point, it is worth noting that notwithstanding frequent affirmations of its importance, the Genocide Convention does not as such prohibit reservations. That it does not do so expressly is obvious, as they are simply not mentioned. However, the Convention does not preclude reservations implicitly either. Given the necessary legislation defining and punishing the crime of genocide’, thus drawing attention to the need to comply with Article V before Article VII could be implemented. 81 See Article VII mns 18–22. 82 Declaration by the United States (paras 1–2 of the ‘Understandings’). 83 See e. g. the ‘reservations’ formulated (with variations) by Morocco, Myanmar and Algeria. 84 See Article VI, mns 38–43. 85 Reservations not fitting into any of the three categories mentioned in the text have e. g. been made by Myanmar (excluding the application of Article VIII – but of little effect, as it could not preclude the use of UN Charter-based powers); and by the Philippines in relation to Art IV. Finland initially also made a reservation to Article IV, but withdrew it in 1998.

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practice of states (and pronouncements by the ICJ), the point may seem trite. Yet it is worth making, as the matter is less obvious than may seem at first sight. In fact, at least in 1948 an argument could well be made that, while not addressing the matter expressly, the Convention’s drafters had intended to exclude reservations.86 The Sub-Committee charged to discuss the Convention’s final provisions e. g. ‘saw no need for any reservations’87 (which is different from ‘no need for any provision on reservations’). The Secretariat seems to have recognised at best a limited role for reservations, noting that ‘it is doubtful whether reservations ought to be permitted and whether an article relating to reservations ought to be included in the Convention’.88 However, these statements were either ignored or given short shrift in the ICJ’s 32 Reservations opinion of 1951. The Court’s majority relied on another passage from the Secretariat comment, pursuant to which only ‘reservations of a general scope have no place in a Convention’ (implying that other reservations might have a place)89 and stressed that during the Sixth Committee debates preceding the adoption, some states had discussed potential reservations to the Convention.90 In the view of the majority, ‘an understanding was reached within the General Assembly on the faculty to make reservations’.91 This was by no means the only possible interpretation of the travaux;92 and 33 Schabas may be correct to suggest it was based on an ‘inaccurate and incomplete’ assessment.93 However, it was plausible in 1951, and since then would seem to have become unassailable: whatever the correct reading of the drafting history, more than six decades after the adoption of the Convention, the impact of the travaux on the interpretation of the Convention can only be limited.94 In the absence of an express provision, subsequent practice seems to be of particular relevance,95 and it strongly militates against an implicit general prohibition on reservations. Notwithstanding doubts about its reasoning, the ICJ’s advisory opinion has come to be accepted. State parties to the Convention have made reservations in considerable number.96 To the extent that objections to reservations are justified on legal grounds, state 86

Arguments to this effect are notably explored by Schabas, Genocide in Int’l Law (2nd ed.), 615–9. UN Doc. E/AC.25/10, 5. 88 UN Doc. E/447, 55. According to Robinson, Genocide Convention, 35, ‘the authors [of the Secretariat Draft] were not sure whether they ought to be permitted at all and whether an article relating to them should be included in the treaty’. 89 UN Doc. E/447, 55. 90 See e. g. references in UN Doc. A/C.6/SR.133, 3–5; UN Doc. A/PV.178, 63–5 and UN Doc. A/ PV.179, 22. 91 ICJ Reports 1951, 15, 22–3. 92 Contrast the more guarded view advanced in the joint dissent of Judges Guerrero, McNair, Read and Hsu Mo: ICJ Reports 1951, 15, 41–4. Even the four dissenters however did not suggest a blanket prohibition. 93 Schabas, Genocide in Int’l Law (2nd ed.), 617. 94 For general comment on the role of the travaux in the process of treaty interpretation see Introduction, mns 29–38. 95 Schabas considers it ‘unquestionable that the advisory opinion settled the issue of the permissibility of reservations, as confirmed by State practice since that time’ (Genocide in Int’l Law (2nd ed.), 618). 96 Writing in 1987 and focusing on one particular provision, LeBlanc noted that ‘the [Reservations] opinion was followed by a fairly constant stream of reservations to Article IX and a tremendous decline in the number of objections to them’ (WisconsinILJ 6 (1987), 73). Since 1987, the ‘stream’ has become less ‘constant’, but remains considerable. 87

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parties advance specific arguments, typically based on the object and purpose of the Convention; but do not suggest a blanket prohibition. In short, in debates since 1951, the focus is on the specific characteristics of a reservation – just as under the general regime shaped by Articles 19 to 23 VCLT. All this suggests that reservations are not as such prohibited. 2. Compatibility of selected reservations 34

The permissibility of reservations therefore needs to be assessed in light of the ‘compatibility test’ reflected in Article 19 lit. (c) VCLT. In scrutinising selective reservations, the question throughout is whether, as put by the ILC, they ‘affec[t] an essential element of the treaty that is necessary to its general tenour, in such a way that the reservation impairs the raison d’eˆtre of the treaty.’97 In some instances, this test can be applied in a rather straightforward manner. For example, Myanmar’s reservation against Article VIII is without any relevant effect and does not ‘impair the raison d’eˆtre of the treaty’. By contrast, a (hypothetical) reservation by which a state sought to exclude its duty to prevent genocide would obviously affect an ‘essential element of the treaty that is necessary to its general tenour’; it would therefore be incompatible. As regards actual reservations made, two would seem to merit comment. a. Reservations seeking to exclude or modify ICJ dispute settlement

35

By far the largest number of reservations made with respect to the Genocide Convention concerns the possibility of ICJ proceedings pursuant to Article IX. While formulations vary,98 in essence, these reservations aim to protect reserving states from having to defend themselves, before the ICJ, against allegations of genocide made by other states. Such reservations have been made by 17 state parties.99 Their concerns are indicative of a widespread feeling that genocide-related disputes are not best dealt with by means of ICJ proceedings. Over the course of the last 65 years, this has been the view of a considerable number of states, and with considerable variation over time. In 1948, the Soviet Union and many other socialist states were highly sceptical of the (potentially intrusive) role of international courts. Not having been able to preclude the inclusion of Article IX into the Convention,100 they sought to exclude its operation in relation to them by way of reservation101 – triggering, at least initially, fairly regular protests by other states that considered reservations to Article IX to be incompatible with the object and purpose of the Convention.102 Uncertainties surrounding this first 97

ILC Guide to Practice, Guideline 3.1.5. For example, while some states ‘do not consider [themselves] bound by article IX’ (as China states in its reservation), others seek to exclude that Article IX could be used to ‘extend the concept of State responsibility beyond that recognized by the generally accepted principles of international law’ (the Philippines’ chief concern). Most declarations, rather than excluding Article IX, modify it by making the ICJ’s jurisdiction dependent on prior (specific) consent. 99 Namely Algeria, Argentina, Bahrain, Bangladesh, China, India, Malaysia, Montenegro, Morocco, Philippines, Serbia, Singapore, United Arab Emirates, United States, Venezuela, Vietnam, Yemen. See Annex 4 for details. 100 See Article IX, mn. 14. 101 These reservations are reproduced in UN Doc. A/1372, paras 3–18 (but not in Annex 4, as they have since been withdrawn). Kolb gives a helpful summary of developments: see his Personal Scope, in: Gaeta, Genocide Convention, 434–5. 102 Objections by the United Kingdom, Ecuador and Guatemala, in UN Doc. A/1372, paras 6–15. 98

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‘wave’ of reservations prompted the General Assembly to request an advisory opinion, in which the ICJ introduced the ‘compatibility test’ that was to find its way into Article 19 lit. (c) VCLT and general international law.103 Over time, Article IX reservations remained fairly prominent and were made by a 36 number of states joining the Convention regime;104 however, the discipline of protesting states gradually seemed to lessen.105 In the late 1980s, the tables were turned: following the ICJ’s Nicaragua judgment106 (in which it felt unduly censured by the Court), it was clear that the United States would only ratify the Genocide Convention with a reservation to Article IX.107 By contrast, only months after it had eventually done so (again prompting objections), socialist states, from early 1989 onwards, began to withdraw their reservations in a new internationalist (or’ internationally legalist’) spirit.108 When proceedings based on Article IX became a common (and indeed, briefly, from 1999 to 2004, a dominant) feature of the Court’s docket,109 a number of states (Spain, the United States, Rwanda) reaped the ‘rewards’ of their reservation even though in one instance (Rwanda), the state concerned had domestically agreed to withdraw it, while in another (Spain), the reservation was withdrawn shortly after its invocation before the Court. In the various proceedings based on Article IX, the ICJ showed considerable 37 restraint. At the provisional measures stage of the Legality of Use of Force cases, it seemed to limit itself to noting the existence of a reservation which had not met with protests.110 At the provisional measures stage of the Congo Rwanda case, it emphasised the fact that reservations made with respect to Article IX did not affect the substance of the Genocide Convention.111 Finally, in the most pertinent case so far, upholding Rwanda’s preliminary objections, the Court’s majority noted: 103 As five members of the ICJ noted in their joint separate opinion in the Congo Rwanda case, ‘[a]lthough the questions put to the Court were formulated in abstract terms, in reality they concerned reservations that had been made relating to Article IX’ (ICJ Reports 2006, 65, para. 6). In para. 26, the judges note that the Court rendered its opinion ‘fully aware that the reservations in question in fact related to Article IX’. For brief comment on the impact of the Reservations opinion see supra, mns 4–6. 104 Examples include India (upon ratification in 1959), Algeria (upon accession in 1963), Rwanda (upon accession in 1975) and China (when ratifying in 1983). LeBlanc, Wisconsin ILJ 6 (1987), 59, has a useful table showing developments up to the mid-1980s. 105 LeBlanc speaks of a ‘marked decline in the number of objections’ since the mid-1950s (Wisconsin ILJ 6 (1987), 61). See supra, mns 14–6, for comment on the lack of a ‘protest culture’ among state parties to multilateral treaties. 106 ICJ Reports 1986, 14. 107 See Henkin, AJIL 89 (1995), 344: ‘United States reservations to ‘ICJ clauses’ are traceable largely to the sad history of the Nicaragua case.’ 108 The Soviet Union withdrew its reservation in early 1989. For an account of the background see Schwebel, in: Essays Reisman, 1085. 109 See the brief summary of proceedings in the commentary to Article IX, mns 4–8. 110 In the proceedings brought against United States (which had invoked its reservation against Article IX and claimed it was compatible), the Court e. g. noted: ‘Whereas the Genocide Convention does not prohibit reservations; whereas Yugoslavia did not object to the United States reservation to Article IX; and whereas the said reservation had the effect of excluding that Article from the provisions of the Convention in force between the Parties’ (ICJ Reports 1999, 761, para. 32). For background on the ten Legality of Use of Force cases see Article IX, mn. 7. 111 See ICJ Reports 2002, 246, para. 72: ‘whereas that reservation [made with respect to Article IX] does not bear on the substance of the law, but only on the Court’s jurisdiction; whereas it therefore does not appear contrary to the object and purpose of the Convention’.

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‘Rwanda’s reservation to Article IX of the Genocide Convention bears on the jurisdiction of the Court, and does not affect substantive obligations relating to acts of genocide themselves under that Convention. In the circumstances of the present case, the Court cannot conclude that the reservation of Rwanda in question, which is meant to exclude a particular method of settling a dispute relating to the interpretation, application or fulfilment of the Convention, is to be regarded as being incompatible with the object and purpose of the Convention.’112

As is clear from even this impressionistic summary, reservations to Article IX have come and gone; unlike with other reservations, there is a real degree of fluctuation. At the same time, at any point during the Convention’s existence, Article IX reservations have been a relevant factor, and their relevance has been affirmed by the ICJ. 39 The continued popularity of Article IX reservations is difficult to reconcile with regular commitments to the rule of law in international affairs, of which inter-state dispute settlement based on international law is a particularly prominent illustration. In their joint separate opinion appended to the Congo Rwanda case, five judges of the ICJ expressed their concern in the following terms: 38

‘It is a matter for serious concern that at the beginning of the twenty-first century it is still for States to choose whether they consent to the Court adjudicating claims that they have committed genocide. It must be regarded as a very grave matter that a State should be in a position to shield from international judicial scrutiny any claim that might be made against it concerning genocide. A State so doing shows the world scant confidence that it would never, ever, commit genocide, one of the greatest crimes known.’113

As regards the legal assessment, the main question to be addressed is whether reservations directed against Article IX are compatible with the object and purpose of the Convention. This question has been controversially discussed ever since the 1951 Reservations proceedings and – notwithstanding the holdings referred to above – eschews a simple answer. The ILC’s Guide to practice reflects this – as noted above, it does not provide a clear-cut rule as to whether reservations affecting dispute settlement obligations should be incompatible, but invites analysis as to whether ‘the reservation purports to exclude or modify the legal effect of a provision of the treaty essential to its raison d’eˆtre’.114 At least one thing is clear, though: if called upon to apply the Convention in proceedings instituted under Article IX, the ICJ is not restricted to noting that a reservation has been made and whether it has been prompted objections. Like courts under regional human rights treaties, it is called upon to scrutinise whether, in its assessment, an Article IX reservation in questions passes the ‘compatibility test’.115 In performing that scrutiny, and in light of the general considerations set out above, two competing considerations would seem to be of relevance: 41 On the one hand, it is worth underlining that reservations made with respect to Article IX undermine the possibility of ensuring compliance with the Convention. In fact, they concern what in the scheme of the Convention is the only developed 40

112

ICJ Reports 2006, 6, para. 67. For dissenting and separate opinions see infra, mns 41–4. ICJ Reports 2006, 65, para. 25. 114 ILC Guide to Practice, Guideline 3.1.5.7. 115 This is fully in line with the ILC’s Guide to Practice, which provides in Guideline 3.2.5: ‘When a dispute settlement body is competent to adopt decisions binding upon the parties to a dispute, and the assessment of the permissibility of a reservation is necessary for the discharge of such competence by that body, such assessment is, as an element of the decision, legally binding upon the parties.’ 113

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modality by which state parties can seek a binding pronouncement on questions relating to genocide. They exclude or modify ‘the only provision of the Convention addressing the question of State responsibility’;116 as the Convention knows of no other treaty procedures, putative claimant states are precluded from seeking judicial redress. This would generally be a cause for concern, but is particularly so in the case of a treaty aimed at ‘liberat[ing]’ the international community from the ‘odious scourge’ of genocide,117 for which ensuring compliance with its terms must be of central relevance.118 Dissenting from the Court judgment in the Congo Rwanda case, Judge Koroma expressed this concern in the following terms: ‘The allegation involving the commission of genocide is far too serious a matter to be allowed to escape judicial scrutiny by means of a procedural device. The nature of the Convention and gravity of the allegation dictate that, wherever possible, it must be subject to judicial scrutiny.’119

On the other hand, while the Convention does not expressly regulate forms of 42 inter-state enforcement other than ICJ proceedings instituted on the basis of Article IX, states clearly have other means at their disposal to respond to (real or perceived) Convention breaches.120 On the basis of general international law, they can respond to treaty breaches by means of protests, by political claims, by coercive measures not involving the use of force for instance. Within existing international organisations, they can seek to mobilise ‘international co-operation’ against threats of genocide. By way of illustration, where a state is engaged in genocide, Security Council action or other sanctions may be called for.121 Where a state fails to act against impending genocide (thus possibly violating its duty to prevent), public pressure to encourage intervention may be the most realistic way forward. Where a state enacts domestic legislation that is not ‘effective’ in the sense of Article V, a ‘facilitative’ response (for example an offer of judicial cooperation) may be best suited. Where a state contemplates an amnesty covering genocide, other states can issue protests or make cooperation in other areas dependent on the withdrawal of the amnesty. None of these options are a direct substitute for ICJ proceedings, and the point is 43 not to suggest that they were of lesser or greater relevance. But the survey suggests that while Article IX may be the ‘only provision’122 addressing inter-state enforcement, ICJ dispute resolution is not the only modality of ensuring compliance with the Convention. In the bulk of cases involving state compliance, debates about compliance do not implicate Article IX.123 And where enforcement is sought against individual perpetrators (whether before national or international courts), their role will typically only be marginal. Preceding the ratification of the Convention by the United States, the US Senate Committee on Foreign Relations at one point observed

116

Congo Rwanda case, dissenting opinion of Judge Koroma, ICJ Reports 2006, 55, para. 12. See the third preambular recital. 118 See Quigley, Genocide Convention: 221: ‘Subjecting states to accountability was a central feature of the Genocide Convention.’ 119 Congo Rwanda case, dissenting opinion of Judge Koroma, ICJ Reports 2006, 55, para. 12. 120 For a brief summary see Article I, mns 91–7. 121 As noted elsewhere, the Security Council is competent to address acts of genocide where it involves a threat to peace in the sense of Article 39 of the UN Charter (as it regularly will): see Introduction, mn. 4. 122 See Congo Rwanda case, dissenting opinion of Judge Koroma, ICJ Reports 2006, 55, para. 12. 123 See Article IX, mn. 2. 117

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that there were ‘other, better suited international fora where pressures against offending states can be brought to bear.’124 44 In the light of these considerations, the approach taken in the joint separate opinion filed by five members of the ICJ in the Congo Rwanda case has a lot to be said for it. In it, Judges Higgins, Kooijmans, Elaraby, Owada and Simma correctly emphasised the desirability of inter-state dispute settlement based on Article IX, while at the same time recognising the limits of the Court’s role (such as with regards to the supervisory organs under other multilateral treaties). They were certainly correct in noting that it was ‘not self-evident that a reservation to Article IX could not be regarded as incompatible with the object and purpose of the Convention’ – a matter which they believed ‘the Court should revisit for further consideration’.125 At the same time, their decision not to qualify the Rwandan reservation as incompatible with the object and purpose of the Convention seems persuasive, too. The regular practice of states filing Article IX reservations is highly disappointing, but also indicative. It highlights that since 1948, a relevant number of states (prompting a decreasing number of protests) have considered Article IX not to be a central element of the Convention. The fact that typically, only a few states have objected shows that, in the view of state parties, ‘it cannot be said that the entire scheme of the Genocide Convention would necessarily collapse if some States make reservations to Article IX’.126 Notwithstanding grave concerns, reservations made with respect to Article IX are therefore not generally incompatible with the object and purpose of the Genocide Convention. b. Reservations seeking to protect the domestic legal order 45

A second reservation is less common, but goes much further than attempts to exclude dispute settlement options. It seeks to subject the Convention regime in its entirety to domestic law. Such reservations have been made with respect to many human rights treaties and at least in the early days of human rights law seemed popular. In relation to the Genocide Convention, when preparing its ratification in the 1980s, the United States ‘activated’ the earlier practice and stated ‘[t]hat nothing in the Convention requires or authorizes legislation or other action by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.’127

46

The reservation prompted protests by a number of states.128 Its terms are sweeping indeed: pursuant to it, the Convention’s reach almost seems to stop at the United States borders. Even though, by ratifying, the United States accepted to be bound by the Genocide Convention, its terms cannot ‘require or authorize legislation or other action’ if that such ‘legislation or other action’ would run counter to the Constitution. What is more, the reservation clarifies that what is ‘prohibited by the Constitution’ is 124 Report on Ratification of the Genocide Convention, as quoted in LeBlanc, WisconsinILJ 6 (1987), 73. 125 Congo Rwanda case, joint separate opinion, ICJ Reports 2006, 65, para. 29. 126 See Congo Rwanda case, joint separate opinion, ICJ Reports 2006, 65, para. 26. 127 LeBlanc, WisconsinILJ 6 (1987), 43, provides much detail regarding the ratification process. For critical comment on the United States approach to the ratification of humanitarian treaties (including the Genocide Convention) see Henkin, AJIL 89 (1995), 341. 128 See e. g. objections by the Netherlands, Denmark, Finland, Sweden, Ireland, Norway.

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for the United States to determine; in this respect, the reservation is self-judging. In light of the general considerations set out above, it seems difficult to argue that this reservation was compatible with the object and purpose of the Convention – too obviously does it seek to exclude the autonomy of the international regime.129 Moreover, it is clear from Articles IV to VI in particular that the Convention is intended to shape domestic legal orders, which are meant to be harmonised to give effect to the treaty’s terms.130 Unlike with respect to Article IX reservations (where the matter is doubtful), the 47 need for domestic implementation – and, possibly, changes to domestic legal orders – is clearly a central element of the Convention’s design. A provision precluding the Convention from producing ‘real’ effects within member states’ domestic legal order would seem incompatible with the object and purpose of the Convention. This indeed seems the general tenor of objections by states such as Ireland, Denmark, or Sweden, which typically clarify that ‘a State party to the Convention may not invoke the provisions of its national legislation, including the Constitution, to justify that it does not fulfil its obligations under the Convention’.131 The same result would seem to flow from the ILC’s Guide to Practice, which provides that reservations ‘by which a State … purports to exclude or to modify the legal effect of … the treaty as a whole in order to preserve the integrity of specific rules of the internal law of that State at the time of the formulation of the reservation may be formulated only insofar as it does not affect an essential element of the treaty nor its general tenour.’132

In the case of the United States reservation, insofar as it seeks to subordinate the 48 Genocide Convention to US constitutional law, essential elements of the treaty are affected. The reservation therefore is incompatible with the object and purpose of the Genocide Convention, and automatically (in other words irrespective of objections by other States) ‘null and void, and therefore devoid of any legal effect’.133 3. Legal effects of reservations The legal effects of reservations made with respect to the Genocide Convention 49 can be determined in light of the preceding considerations and the general regime set out at the beginning of this chapter. In line with the general regime, where a reservation is compatible, its effects are determined by the response of other treaty parties. If reservations made with respect to Article IX are treated as compatible, the 50 situation would seem to be as follows.

129 Pursuant to Article 27 VCLT, ‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.’ According to Schmalenbach (in: Do¨rr/Schmalenbach, VCLT Commentary, 453), the provision affirms ‘the fundamental principle that international treaties must be performed in good faith’ and ‘[t]o this end, … rules out the most mundane justification for non-compliance’, namely the invocation of domestic law. 130 This is particularly clear for Article V, which requires ‘necessary legislation to give effect to the provisions of the present Convention’. 131 As put in the Swedish objection. Other states expressly referred to Article 27 VCLT. 132 ILC Guide to Practice, Guideline 3.1.5.5. 133 ILC Guide to Practice, Guideline 4.5.1.

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– First, in relation to states that have not objected, the reservation produces full effects, as silence means tacit consent.134 In other words, in the treaty relations between reserving and the consenting states, the Genocide Convention applies, but Article IX (depending on the terms of the reservation) is excluded or modified.135 – Second, in relation to states that have lodged objections, the reservation does not produce the intended effect.136 Unless the objecting state has clearly said so, the treaty nevertheless enters into force (but without its Article IX).137 This would be true for the clear majority of objections,138 including in some instances, in which objecting states have expressly stated that the Convention nevertheless applied.139 However, in at least one instance, a state (the Netherlands) has formulated a ‘maximum objection’, viz. has clearly stated that it does not consider reserving states to be a party to the Convention.140 In these (few) instances, the Convention does indeed not apply between the reserving and objecting State.141 All this bears out the concerns that the application of the VCLT approach (as shaped by the Reservations opinion) would result in ‘a veritable web of diverse reciprocal commitments within the framework of a multilateral convention’.142 51 As regards incompatible reservations – such as the ‘constitutional reservation’ formulated by the United States – the views of objecting states are merely indicative. In the specific instance (probably due to the prominence of the reserving state and the very protracted nature of its ratification process), a relatively large number of treaty parties did what the ILC’s Guide suggest other treaty parties should do – and lodged objections. Most of these reject the United States reservation because it created uncertainty;143 others try to ‘contain’ its effects, for instance by interpreting to ‘to mean that legislation or other action by the United States of America will continue to be in accordance with the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide’.144 134

See Article 20 para. 5 VCLT. Article 21 para. 1 VCLT; ILC Guide to Practice, Guideline 4.2.4. 136 See ILC Guide to Practice, Guideline 4.3.: objection ‘precludes the reservation from having its intended effects as against [the objecting] State’. 137 Article 21, para. 4 lit. (b) VCLT and ILC Guide to Practice, Guidelines 4.3., 4.3.1 and 4.3.6. 138 Most objecting states have not argued that the Convention did not apply: see e. g. the objections lodged by Belgium, Australia, Ecuador, the United Kingdom etc. 139 For example, Mexico’s objection to the US reservation contains the following caveat: ‘Mexico’s objection to the reservation in question should not be interpreted as preventing the entry into force of the 1948 Convention between the [Mexican] Government and the United States Government.’ The Swedish objection contains similar language. 140 The Netherlands objection, made in 1966 and repeated in 1989 (in response to the US reservation) runs as follows: ‘The Government of the Kingdom of the Netherlands declares that it considers the reservations made [with respect to Article IX] to be incompatible with the object and purpose of the Convention. The Government of the Kingdom of the Netherlands therefore does not deem any State which has made or which will make such reservation a party to the Convention’ (emphasis added). 141 Note that Brazil has reserved its position: ‘The Brazilian Government reserves the right to draw any such legal consequences as it may deem fit from its formal objection to the abovementioned reservations.’ 142 Congo Rwanda case, joint separate opinion, ICJ Reports 2006, 65, para. 9. 143 See e. g. (with variations) the objections by Italy, Denmark, Norway, Ireland, Estonia and the United Kingdom. 144 As put by Spain. According to Aust, this had something of ‘the Nelson touch’ (Modern Treaty Law and Practice (2nd ed.), 148). 135

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If the reservation is treated as incompatible (and thus devoid of legal effect), the 52 real question is whether it could be severed – so that the United States remained bound by the Convention without the benefit of its invalid reservation. Under the ILC’s approach, the United States’ intention would have to be assessed first. Given the protracted character of the ratification process, this presumably would mean that the United States would not be a treaty party at all, as the constitutional reservation seemed a condition sine qua non for ratification.145 In the specific instances, the ILCs controversial presumption in favour of severability146 might not apply at all. In any event, the case illustrates the complexities of ‘managing’ the problem of incompatible reservations.

III. Withdrawal of reservations Finally, it is worth noting that a number reservations formulated in relation to 53 the Genocide Convention have been withdrawn. Predictably, practice relating to Article IX is particularly prominent. In the light of their changed policy vis-a`-vis international adjudication, no less than 12 states have withdrawn their reservations against Article IX. Former Socialist states did so from 1989 onwards;147 Spain followed suit in 2002 (having benefited from its reservation in the Legality of Use of Force case).148 Finally, in the Congo Rwanda case, the ICJ seized the opportunity to clarify 54 different stages in the withdrawal process. As noted above, the case turned, at least in part, on the validity of the Rwandan reservation149 – but there was a twist: according to the Congo, Rwanda had withdrawn its reservation. The Court disagreed; in its assessment, Rwanda had merely announced its intention to withdraw the reservation, but not yet implemented that intention. In this respect, it emphasised the ‘clear distinction … between a decision to withdraw a reservation to a treaty taken within a State’s domestic legal order and the implementation of that decision by the competent national authorities within the international legal order, which can be effected only by notification of withdrawal of the reservation to the other States parties to the treaty in question’.150 D. Concluding observations The law of reservations is, as has been observed, ‘a matter of considerable 55 obscurity’.151 Practice relating to the Genocide Convention fully bears out this observation. Largely responsible for this problematic state of affairs is the VCLT regime, which indeed (as has been noted) ‘has not eliminated all … difficulties’,152 but rather compounded them by approaching reservations from an ‘inter-subjective’ perspective – as a matter to be dealt with mainly by treaty parties. Reserva145 This at least is suggested by the protracted ratification process. For details see LeBlanc, WisconsinILJ 6 (1987), 43. 146 ILC Guide to Practice, Guideline 4.5.3.2.; and see supra, mns 18–20. 147 Supra, mn. 36. 148 Supra, mns 36–7. 149 Supra, mns 41–4. 150 ICJ Reports 2006, 6, para. 41. 151 O’Connell, International Law, 230. 152 See Reuter, Tenth Report, YbILC 1981, vol. II/1, 56.

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tions practice under a public interest treaty like the Genocide Convention reflects the vagueness of the Vienna Convention regime: the compatibility of reservations remains difficult to determine; impartial pronouncements on reservations are not regularly forthcoming (and, as the Congo Rwanda case illustrates, when they are, may be controversial); and there is no real incentive to object to reservations if this has the effect of driving the reserving state away from the treaty altogether. A moderate severability doctrine, as advocated in the ILC’s Guide, would indeed seem the most promising way forward. However, decades of reservation practice (and reservation-friendly ICJ jurisprudence) are likely to have given rise to expectation on the part of reserving states that their existing reservations will remain valid. Whatever their prospects generally, this will probably prevent the ILC’s proposals on severability from being applied to the Genocide Convention. 56 While the root causes of the reservation malaise cannot be addressed easily, some of the common exhortations can help address its symptoms. It would be desirable for states to engage with reservations by other states; to formulate clearly-worded objections where they consider a particular reservation to be incompatible; and to explain their view on why a particular reservation passes, or fails, the compatibility test. All this could increase pressure on reserving states and thus induce new state parties to formulate reservations sparingly or to tailor them narrowly, just as it might, over time, result in the withdrawal of existing reservations. In fact, experience with the Genocide Convention – more than with other treaties – suggests that withdrawal is a real option. 57 While reservations formulated with respect to the Genocide Convention are affected by structural weaknesses of the reservation regime, the problems to which they give rise seem manageable. ICJ dispute settlement is the main ‘victim’ of reservations and while this is highly unfortunate, ‘the entire scheme of the Genocide Convention’ has not ‘collapse[d]’.153 Outside Article IX, and notwithstanding some exceptions like the US ‘constitutional reservations’, truly problematic reservations are few. Perhaps, after all, a treaty outlawing genocide does have a particular normative pull. 153

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Article X The present Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall bear the date of 9 December 1948. Table of Contents: A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. The legal implications of multilingual treaty drafting . . . . . . . . . . . . . . . . . II. The ‘correction’ of the authentic Chinese text . . . . . . . . . . . . . . . . . . . . . . . . . . D. Concluding Observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

mn. 1 3 6 7 10 11

A. Introduction Article X is the first of the Convention’s many protocolar provisions. It addresses 1 two distinct issues: the date the Convention shall bear and the question of authentic languages. While the former of these is rather technical, the latter has given rise to uncertainties as well as curious developments. Both issues – date and authentic language – are typically addressed in the final clauses of multilateral treaties, even though Article X may be somewhat unusual in dealing with them in one provision. The date it refers to (9 December 1948) is the date of the Convention’s adoption by the United Nations General Assembly, not the date of its entry into force, which is governed by Article XIII. From the date of adoption, states could sign the Convention in line with the procedure set out in Article XI. By declaring the Chinese, English, French, Russian and Spanish texts of the 2 Convention to be ‘equally authentic’, Article X clarifies that the Convention is a multilingual treaty.1 As will be seen, this may give rise to problems of interpretation. As was noted by the International Law Commission in its Draft Articles on the Law of Treaties (which formed the basis for the codification of that field in the Vienna Convention), ‘the plurality of the texts [of a treaty in different authentic languages] may be a serious additional source of ambiguity or obscurity in the terms of the treaty’.2 Yet notwithstanding these risks, for multilateral treaties with wide membership, it has become common practice to agree on more than one authentic treaty language, as this reflects the multilateral character of the agreement.3 When the Convention was negotiated in the late 1940s, this practice was still somewhat controversial, as witnessed by the travaux to Article X. Still, even at that stage, the trend towards multilingualism was difficult to stop. As to the choice of languages, 1 The official or authentic language of the treaty needs to be distinguished from the language in which the actual debates preceding its adoption were conducted. As with many other multilingual treaties, the Convention – even though it has five authentic language texts – was negotiated in two languages only: the Secretariat Draft was submitted and discussed in French; the United States Draft was in English, the French Draft in French; the Ad Hoc Committee mainly worked on the basis of the English language text. 2 Commentary to draft article 29, para. 6 (YbILC 1966, vol. II, 225). 3 In para. 1 of the commentary to draft article 29, the ILC noted: ‘The phenomenon of treaties drawn up in two or more languages has become extremely common and, with the advent of the United Nations, general multilateral treaties drawn up, or finally expressed, in five different languages have become quite numerous.’ (YbILC 1966, vol. II, 224).

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Article X 2–4 Article X follows the model of Article 111 of the UN Charter, and both treaties confirmed the trend towards ‘real’ multilingualism going beyond the EnglishFrench dichotomy, which had been common during the times of the League of Nations. It may be presumed that were the Convention to be negotiated today, it would – like other contemporary multilateral treaties sponsored by the United Nations – mention the Arabic text as the sixth ‘equally authentic’ version.4 The text of the Convention in the five authentic languages is considered ‘the original of the Convention’, which according to Article XVIII ‘shall be deposited in the archives of the United Nations’.

B. Drafting history 3 Even though the eventual text was only agreed at a later stage, it was clear from the beginning that a provision of the Convention would determine the date and the authentic languages of the Convention. Article XXV of the Secretariat Draft contained a skeleton version of what was to become Article X, but left open which languages should be authentic and – more obviously – the eventual date of the Convention.5 While the date played no relevant role during the drafting, the question of authentic languages did raise concerns. The matter was notably discussed by the three-member Sub-Committee appointed by the Ad Hoc Committee to deal with the final clauses.6 According to its Polish member, the Convention should be drafted in the (then) five official languages of the United Nations whilst the delegate from the United States felt the Convention should be drafted in English and French only.7 The Sub-Committee consequently decided to refer the question to the Committee and to ask the Secretariat to submit a report on practice followed hitherto by the UN.8 4 The Secretariat’s report, submitted by the Legal Department, showed that for Conventions adopted under the auspices of the United Nations, the use of five official languages of equal authority had become reasonably common practice by 1948.9 This eventually proved to be decisive. A majority in the Ad Hoc Committee held, referring to the Secretariat’s report, that a Convention as important as the Genocide Convention should not approach the questions of languages in a more restrictive way. The French representative warned that having five equally valid texts of one treaty was dangerous, especially for treaties that would be interpreted by international tribunals.10 However, this view remained a minority position, and France and the United States eventually accepted, for the sake of unanimity, that the Convention should be drafted in five authentic languages.11 This was provided in 4 Modern practice is illustrated by, e. g., Article 93 para. 1 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990) or Article 50 of the Convention on the Rights of Persons with Disabilities (2006). Article 6 of the Rome Statute, reproducing the definition of Article II of the Convention, is equally authentic in all six official languages of the United Nations (see Article 128 of the Statute). 5 UN Doc. E/447, 52. 6 UN Doc. E/AC.25/10, 2. 7 See UN Doc. E/AC.25/SR.23, 10. 8 UN Doc. E/AC.25/10, 2. 9 See Memorandum Submitted by the Legal Department, UN Doc. E/AC.25/10, 13 (Annex). 10 UN Doc. E/AC.25/SR.23, 11. 11 UN Doc. E/AC.25/SR.23, 11.

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Article XI of the Ad Hoc Committee Draft,12 which, subject to minor linguistic adjustment, became Article X of the Convention. It deserves to be noted, however, that the decision of principle was by no means 5 easy to implement meaningfully. More specifically, in December 1948, it was felt that the Convention should be adopted during the ongoing session of the General Assembly.13 Perhaps as a result of this tight time-scale, when Resolution 260 (III) was put to the vote, although the English and French texts had been distributed on 4 December 1948 and the Russian text on 6 December 1948, noticeably, the Chinese and Spanish versions were not yet available.14 As a consequence, Article X declared as authentic two language versions that had not been scrutinised. While this episode does not affect the legal validity of Article X, it illustrates the practical challenges of multilingual treaty-drafting under time-pressure.

C. Interpretation Article X declares five language versions to be equally authentic, but does not 6 spell out the implications of that statement in any detail. In order to assess them, it is necessary to have recourse to rules of general treaty law, as codified in the Vienna Convention on the Law of Treaties. In addition, subsequent treaty action concerning the Chinese language version of the Convention needs to be briefly addressed. I. The legal implications of multilingual treaty drafting Multilingual treaty drafting has become a regular feature of international rela- 7 tions. The main legal question raised by it concerns the interpretation of multilingual treaties.15 This question is addressed in Article 33 VCLT which applies as customary international law.16 By declaring five languages to be ‘equally authentic’, Article X confirms the general (default) rule that ‘[w]hen a treaty has been authenticated in more than one language, the text is equally authoritative in each language’.17 It follows that working languages in which the Convention were negotiated do not enjoy any status of inherent priority,18 even though in case of discrepancies, they may assume particular importance.19 Conversely, it is also clear that a version of the treaty in a language that is not authentic shall not be considered authoritative; even though states may prepare official translations, these are not authoritative for the purposes of treaty interpretation.20 As regards the actual process of interpretation, general international law lays 8 down two rules. First, pursuant to the customary rule expressed in Article 33 para. 3 VCLT, the terms of the treaty are presumed to have the same meaning in each of 12

UN Doc. E/794, 41. A/C.6/SR.132. 14 This ran counter to the Legal Department’s advice that current practice was that ‘when the convention is to be concluded in more than two working languages, each of which is to be equally authentic, the translation into the other languages is prepared before its signature’: UN Doc. E/ AC.25/10, 16 (Annex) (emphasis added). 15 For a comprehensive study see Hilf, Auslegung mehrsprachiger Vertra ¨ge, passim. 16 ICJ, LaGrand case, ICJ Reports 2001, 466, para. 101; and further Introduction, mns 29–38. 17 Article 33 para. 1 VCLT. 18 Contrast Pollox, BYIL 23 (1946), 79; Sinclair, Vienna Convention, 148. 19 See infra, mn. 11. 20 Villiger, VCLT Commentary, Article 33, mn 7. 13

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Article X 8, 9 the authentic languages.21 This presumption is rebuttable, but serves as a useful starting-point and underlines the idea that of the unity of the treaty in all its authentic language versions.22 It notably allows states to work with the authentic language version of their convenience rather than having to compare, in each and every instance, the different authentic texts.23 However, at least if the ordinary meaning of a treaty’s notion is unclear or ambiguous, it is helpful – if not indicated – to draw on the other authoritative language versions.24 Second, when a comparison between the different authentic texts discloses a discrepancy that cannot be solved by recourse to the regular rules of interpretation laid down in Articles 31 and 32 VCLT, Article 33 para. 4 VCLT stipulates that ‘the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted’. This, for instance, means that where different authentic texts diverge (and the presumption is thus rebutted), it may be necessary to have recourse to the travaux to resolve a difference of meaning, which in turn may indirectly increase the weight of the working languages.25 It is only if the regular rules of interpretation are of no help that one authentic language version, namely the one that best reconciles the texts, assumes priority over the others.26 9 To illustrate the operation of these rather complex general rules, it may be helpful to consider how they have been applied to solve actual language discrepancies appearing in the different authentic texts of the Convention. When leaving aside the ‘correction’ of the Chinese language version,27 one of the more prominent examples in which discrepancies28 have been discussed relates to Article II lit. (a) of the Convention, which defines acts of genocide. The controversy which has brought these linguistic differences to light concerns the degree of intent required to commit the first of the prohibited acts.29 In the English text, Article II lit. (a) refers to ‘killing’, a term which, while formulated in an open way, in English-speaking jurisdictions generally does not require intentional homicide.30 Similarly, both the Spanish and Chinese texts use terms which cover killing regardless of intent. On the other hand, the Russian text uses the term ‘ubiistvo’ which can cover both intentional and non-intentional forms of homicide. Different again, the French text uses ‘meurtre’, a term which – in contradistinction to ‘tuer’ – in French penal legislation covers only intentional forms of homicide.31 In its Akayesu judgment, seeking to accommodate all five texts, the ICTR held that the different texts could 21 Aust, Modern Treaty Law and Practice (2nd ed.), 254. For an illustration see ICJ, Kasikili Sedudu Island, ICJ Reports 1999, 1045, para. 25. 22 See to this effect the ILC’s statement in YbILC 1966, vol. II, 225. 23 Villiger, Commentary on the VLCT, Article 33, mn. 8. 24 Hilf, Auslegung mehrsprachiger Vertra ¨ge, 73–83. 25 See e. g. Hilf, Auslegung mehrsprachiger Vertra ¨ge, 83–101; statements by Verdross, in YbILC 1966, vol. I/2, 208–9 (paras 5, 22 and 33). 26 Hilf, Auslegung mehrsprachiger Vertra ¨ge, 101–3. 27 See infra, mn. 10. 28 It is interesting to note that during the US Senate deliberations over ratification, both the State and Justice departments concluded that there were no substantive differences between the five texts: see Hearing Before the Committee on Foreign Relations, US Senate, 5 March 1985, Washington: US Government, Printing Office, 1985, at 169–71. 29 See Quigley, Genocide Convention, 94–5, for a clear assessment. For more detail see Article II, mn. 14. 30 Quigley, Genocide Convention, 94–5. 31 Quigley, Genocide Convention, 94–5.

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be reconciled if interpreted in the ‘French’ way, that is, by requiring intent.32 The Russian ‘ubiistvo’ should hence be read as an equivalent of ‘meurtre’. Perhaps more controversially, the ICTR held that notwithstanding the divergent common use of terminology, the English, Spanish and Chinese texts could be construed so as to require intent without departing from the ordinary meaning of their terms. Subsequently, in the Kayishema case the ICTR reached the same result through different reasoning, stating that since the acts listed in Article II must be committed with intent to destroy a group, the act of killing must be intentional.33 The ICTR’s attempts to handle come to terms with the challenges of multilingualism are driven by pragmatism rather than refined linguistic analysis. Yet they illustrate how the general rules (which are no model of simplicity) can be applied and used provide means of resolving problems of multilingualism.

II. The ‘correction’ of the authentic Chinese text While Article X – just as all the other provisions of the Conventions – remains 10 textually unchanged, it should be noted that it has been the subject of a curious form of treaty action. As noted above, Article X declared the Chinese text of the Convention to be authentic even before that text was made available.34 This rather hasty approach may be one factor explaining why the Chinese text eventually made available was not fully in line with the other authentic language versions. When the Republic of China ratified the Convention, it prepared a new, revised, text, which, together with its instrument of ratification, it sent to the Secretary-General, requesting him to revise the original authentic Chinese text.35 The SecretaryGeneral did not consider himself authorised to do so, but brought the issue before the General Assembly in accordance with the procedure for treaty revision envisaged in Article XVI.36 Most member states were clearly unwilling to apply Article XVI to what they considered a mere correction of linguistic errors. Keen to avoid unnecessary complications, the General Assembly requested the SecretaryGeneral to circulate the ‘corrected’ the Chinese text inviting acceptance and rejection.37 No rejections were registered,38 and states ratifying or acceding to the Convention since 1952 have done so on the basis of the corrected Chinese text. The episode illustrates that even formal, technical questions such as authenticity of a text are at times handled very pragmatically. As a result of this pragmatism, the corrected version of the Chinese text has replaced the (original) ‘defective text ab initio’.39 As the language of Article X is clear, this does not however affect its status as an authentic version of the Convention.40 32

ICTR Akayesu, TC, 2 September 1998, paras 500 et seq. ICTR Kayishema and Ruzindana, TC, 21 May 1999, paras 103–4. 34 Supra, mn. 5. 35 Annex 1 reproduces the corrected Chinese text. 36 UN Doc. A/1880 (memorandum reproduced in YbILC 1963, vol. II, 32–5). See further Article XVI, mn. 6, as well as Liang, AJIL 47 (1953), 263. 37 GA Res. 691 (VII). For details see the records of the debate held in the Sixth Committee: UN Doc. A/C.6/SR.354 and the memorandum prepared by the Secretariat (UN Doc. A/2221). 38 Robinson, Genocide Convention, 117. 39 See Article 70 para. 4 VCLT. 40 Contrast statements made during the General Assembly debates on the correction of the Chinese text, according to which the Chinese text ought to be ‘downgraded’ from authentic text to official translation: UN Doc. A/C.6/SR.354, 6. 33

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Article X 11 D. Concluding Observations 11 Article X reflects the trend towards multilingual treaty-making. Its decision to declare the Chinese, English, French, Russian and Spanish texts to be equally authentic follows the model of the UN Charter, but (just as the Charter) does not include Arabic, which only subsequently became an official language of the United Nations. The travaux illustrate the practical challenges of multilingual treatymaking: hence two language versions were declared authentic even though they did not exist at the time. The subsequent ‘correction’ of the Chinese text indicates that this may give rise to uncertainties at a later stage. Yet problems need not be overstated. States have found a pragmatic way of replacing one Chinese language version with another; and the general rules governing the interpretation of multilingual treaties have proved flexible enough to resolve language discrepancies.

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Article XI The present Convention shall be open until 31 December 1949 for signature on behalf of any Member of the United Nations and of any non-member state to which an invitation to sign has been addressed by the General Assembly. The Present Convention shall be ratified, and the instruments of ratification shall be deposited with the Secretary-General of the United Nations. After 1 January 1950, the present Convention may be acceded to on behalf of any Member of the United Nations and of any non-member state which has received an invitation as aforesaid. Instruments of accession shall be deposited with the Secretary-General of the United Nations. Table of Contents: A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Eligibility to participate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Modalities of expressing consent to be bound . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Signature and ratification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Accession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Succession to the Genocide Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. The possibility of succeeding to the Convention. . . . . . . . . . . . . . . . . . b. Conditions governing succession; automatic succession . . . . . . . . . c. Effects of succession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. The depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D. Concluding observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

mn. 1 4 7 8 12 13 17 19 21 22 27 28 30

A. Introduction Article XI in some detail addresses the process by which states can become bound 1 by the Genocide Convention. More specifically, it deals with three separate questions: (i) which states are eligible to participate in the Convention’s regime? (ii) how is consent to be bound to be expressed?; and (iii) with whom are the instruments expressing consent to be bound to be deposited? On the first of these questions, Article XI differentiates between UN member states (which are eligible to participate) and non-members (which have to be invited to do so). With respect to the second, it introduces a distinction between original membership (expressed through signature and ratification) and subsequent accession. With respect to the third question, Article XI designates the UN Secretary-General as the depository of instruments of ratification and accession. While these are technical matters, the approach of Article XI reveals a number of 2 insights into questions of treaty law, and also into the drafters’ understanding of treaty membership. Article XI has to be read in line with a number of other provisions of the Convention. Having spelled out the procedure to become bound as a state party in Article XI, the Convention, in Article XII, goes on to lay down a simplified procedure by which it can be extended to non-metropolitan territories (colonies, dependencies, protectorates, etc.). Article XIII and XV clarify that the number of state parties is relevant for the entry into force of the Convention (requiring that a certain threshold has to be reached), or conversely for its Tams

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Article XI 2–5 termination (if the number of state parties drops below a given threshold). Articles XVIII, XIX and XX spell out the role of the depository in more detail. Finally, treaty rules on consent to be bound are complemented by the general rules governing state succession to treaties, which the Convention does not address, but which needs to be addressed as it is of considerable practical and conceptual interest.1 3 To date, 143 states have become bound by the Convention by one of the ways prescribed in Article XI.2 While this figure is considerable, it bears recalling that treaty participation is by no means universal. Among the states that have not become bound by the Convention are Eritrea, Japan, Kenya, Tajikistan and Thailand.3

B. Drafting history 4 Provisions on consent to be bound are a common feature of international agreements, and it was clear from the outset that the Genocide Convention would contain one. However, the travaux reveal uncertainty about the details of such a provision. There was notably no agreement on how states would express their consent to be bound. In this respect, the initial Secretariat Draft, in Article XVI, proposed two alternative options.4 The first draft envisaged a rather simple model: consent to be bound was to be expressed by way of accession. The second draft distinguished between original membership (expressed through signature and ratification within a prescribed time) and subsequent membership (by way of accession). In the view of the Secretariat, the first model seemed preferable. In its view, whilst providing for a period for signature followed by ratification was appropriate in the case of treaties prepared at diplomatic conferences, it considered this procedure to be unnecessarily complicated for treaties adopted by the General Assembly under the auspices of the United Nations.5 However, the Secretariat’s proposal met with opposition from some states who advocated an approach more in keeping with traditional practice. The United States Draft proposed the traditional procedure of allowing for a short period following adoption during which states could sign and subsequently ratify; after this, states could join by way of accession.6 This approach was adopted by a Sub-Committee of the Ad Hoc Committee,7 and found its way into Article XII of the Ad Hoc Committee Draft8 and the eventual text of the Convention. 5 With respect to the other distinction drawn by Article XI – that between UN members and other states – the drafting history reveals less debate. In principle, and perhaps surprisingly, it was accepted that such a distinction should be drawn: hence both options of Article XVI of the Secretariat Draft, as well as in Article XII of the Ad Hoc Committee Draft, provided that states not members to the United Nations 1

See infra, mns 19–27. For details on membership see the information provided in Annex 4. 3 For further details see the information provided in Annex 4. 4 UN Doc. E/447, 54. 5 See UN Doc. E/447, 54, where the Secretariat noted ‘that the system represented by the first draft has already been employed for certain general Conventions and that it constituted the system regularly used to International Labour Conventions’. 6 See Article XIII of the United States Draft: UN Doc. E/623, Annex. 7 UN Doc. E/AC.25/10, 4. 8 UN Doc. E/794, 42. 2

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should only be eligible to be a party if invited.9 What was debated was not the principle of distinguishing between UN members and non-members, but the way of implementing it, and more specifically which UN organ should be competent to invite non-members. The Secretariat Draft had envisaged invitations to be issued by ECOSOC. The Sub-Committee of the Ad Hoc Committee considered whether invitations should be issued by the General Assembly, but left the matter open.10 The Ad Hoc Committee narrowly (by 4 votes to 3) decided that the General Assembly would be the most appropriate organ for this task.11 Subsequently, the Soviet Union representative sought to re-open the debate in the Sixth Committee, arguing that ECOSOC met twice a year whereas the General Assembly only met once.12 This however was rejected by a large majority of states which considered that invitations should come from a ‘political’, not a ‘technical organ’, and Article XI was adopted without a vote.13 Finally, the drafting history reveals very little debate about the deposit of 6 instruments expressing consent to be bound. The Secretariat Draft and the Ad Hoc Committee Draft designated the UN Secretary-General as the depositary.14 Given the UN’s role in the drafting process, this seemed a natural choice.

C. Interpretation The terms of Article XI do not raise major problems of interpretation. Never- 7 theless, the provision is relevant because in some respects, it adopts a rather unusual approach to the three questions identified above. In addition, it is also noteworthy for what it does not address, namely the problem of succession to the Convention, which in practice has become relevant and thus needs to be focussed on. I. Eligibility to participate The most fundamental aspect of Article XI is its distinction, drawn in paras 1 and 8 3, between UN member states and other states. As noted above, the latter can only sign and ratify, or accede to, the Convention if invited to do so by the General Assembly. The language adopted in these provisions is clear and leaves little room for doubt. In practice, the General Assembly has delegated its function to the Secretary-General. Through Resolution 368 (IV) of 3 December 1949, it requested the Secretary General to invite to sign and ratify or accede to the Convention ‘each non-member State which is or hereafter becomes an active member of one or more of the specialized agencies of the United Nations, or which is or hereafter becomes a party to the Statute of the International Court of Justice’.15 In today’s age of virtually universal UN membership, the distinction between UN 9 members and non-members has lost much of its practical relevance. However, 9

See UN Doc. E/447, 52; UN Doc. E/794, 42. UN Doc. E/AC.25/10, 4. 11 UN Doc. E/AC.25/SR. 23, 6–7. 12 UN Doc. A/C.6.6/215/Rev.1.; UN Doc. A/C.6/SR.107, 470. 13 See UN Doc. A/C.6/SR.107, 471. 14 See UN Doc. E/447, at 52; UN Doc. E/794, 42. 15 Accordingly, between December 1949 and May 1951, invitations were addressed to the following states: Albania, Austria, Bulgaria, Ceylon, Finland, Hungary, Ireland, Italy, Korea, Monaco, Portugal, Romania, Switzerland, Jordan, Indonesia, Liechtenstein, Cambodia, Laos, Vietnam, Germany, and Japan. 10

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Article XI 9–11 conceptually it is important and for a long time it was also practically relevant. Conceptually, the idea that UN non-members would require to be invited to become a party may be seen as peculiar for a treaty that aspires to codify universal values. On that basis, a number of states (such as Mongolia and Vietnam) over time have expressed misgiving about the ‘differentiated’ approach adopted in Article XI.16 Yet Article XI is relevant precisely because it shows that, during the drafting process, universality was not seen as an absolute goal. In fact, the Secretariat had observed that although universal participation was desirable, it was not possible to leave the Convention open for non-member states as there was no agreed list of ‘other States’ and – more interestingly – as participation by some states ‘may not be desirable at a given moment for various reasons’.17 10 It is worth noting that the cautious approach informing Article XI has been largely abandoned subsequently. GA Resolution 368 (IV), requiring no more than membership in one of the UN specialized agencies, already adopted a rather low threshold requirement. From the 1950 s onwards, UN-sponsored treaties seeking to codify universal values (particularly human rights treaties) have typically no longer drawn a distinction between UN members and other states. Some of them identify states eligible to participate through the establishment of a set of criteria, often reminiscent of those mentioned in GA Resolution 368 (IV), such as participation in the UN or one of its specialised agencies18 Others are open to ‘all States’ or ‘any State’ (the so-called ‘all States formula’).19 Fears that the latter, more inclusive, approach would create problems in handling applications by territories with unclear sovereign status were addressed by the General Assembly: its General Understanding of 14 December 1973 clarifies that in problematic cases, the Secretary General is to request the opinion of the General Assembly on whether a certain entity would be entitled to join a treaty containing an ‘all States’ clause.20 Since then, the ‘all States’ formula has become the norm for treaties intended to have universal application. In this respect, it may be said that the approach of Article XI has been overtaken by subsequent developments. 11 This does not mean, however, that Article XI was without practical relevance. Notably, it has ‘resurfaced’ in the peculiar setting of the Genocide cases before the International Court of Justice. In the proceedings instituted by Croatia, Serbia disputed the Court’s jurisdiction under Article IX of the Convention, arguing that when the case was brought, it had not been a member of the United Nations. As Article XI – so the argument continued – drew a distinction between UN members and other states, and as Serbia had never received an invitation to accede to the Convention in line with Article XI para. 3, it could simply not be bound by (and sued under) the Genocide Convention.21 In the event, the Court held that Article XI did not preclude states not members of the United Nations 16 See the declarations by Vietnam and Mongolia submitted when acceding to the Convention (reproduced in Annex 4); and further Reservations, mn. 27; and paras 334–7 of the Ruhashyankiko Report. 17 UN Doc. E/447, 53–4. 18 The so-called ‘Vienna formula’, based on the Vienna Convention’s treatment of this issue in Article 81 VCLT. See Final Clauses Handbook, 15–6. 19 For details see Final Clauses Handbook, 12–5; Depositary Practice, paras 81–3. 20 See United Nations Juridical Yearbook 1973, 79, note 9; Final Clauses Handbook, 15. 21 See ICJ Reports 2008, 412, para. 112.

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from becoming parties to the Convention by way of succession or if they claimed to continue another state’s legal personality.22 Yet the episode may thus be taken as an indication that even old-fashioned provisions like Article XI occasionally become relevant again and should not be written off lightly.

II. Modalities of expressing consent to be bound The second distinction drawn in Article XI is between the different modalities of 12 expressing consent to be bound by the Convention. The provision mentions two such ways, signature followed by ratification, and accession. As noted above, there was some discussion about the need for such a distinction.23 Unlike with respect to UN members and other states, this second distinction drawn in Article XI has remained a common feature of multilateral treaties. Practice suggests that there is a third modality (not mentioned in Article XI) of becoming bound by the Convention, namely by way of succession. These three modalities will be explored in turn. Before addressing them, it should be reiterated that they concern ways of becoming bound as a state party; by contrast, Article XII envisages a simplified procedure by which the Convention may be extended to non-metropolitan territories whose foreign relations are administered by a state party. 1. Signature and ratification The first way of expressing consent to be bound is by signing and ratifying the 13 Convention. Just as with many other treaties, the Convention, in Article XI para. 1, sets an end date (31 December 1949) for signature; after this time, states could only become party to the Convention by means of accession. The starting date from which states could sign is not mentioned in Article XI, but in Article X (9 December 1948). The main purpose of fixing a timeframe generally is to encourage a large number of states to sign the treaty within a reasonably short period of time; this in turn enables them to claim that they are ‘signatories’.24 In the case of the Genocide Convention, this encouragement seems to have produced the intended effects:25 by 31 December 1949, 43 states had signed the Convention,26 which represented a considerable success.27 Signature however is only the first step. As Article XI para. 2 clarifies, the 14 signature is not in itself an expression of consent to be bound by the Convention, but needs to be followed by ratification.28 Ratification itself is a two-stage process: firstly an instrument of ratification must be executed by the domestic executive and 22

ICJ Reports 2008, 412, para. 113. Supra, mn 3. 24 Aust, Modern Treaty Law and Practice (2nd ed.), 437. 25 For details see information in the Annex 4. 26 Of these, seven states were not UN members at the time, but had responded to the SecretaryGeneral’s invitation to sign and ratify the Convention issued in pursuance of General Assembly Resolution 368 (IV) of 3 December 1949. 27 Of these 43 signatories, two states (the CSSR and the SFRY) subsequently dissolved and ceased to be parties to the Convention. For details see infra, mn 16. 28 By contrast, subsequent treaties are often formulated more openly; they typically require ‘ratification, acceptance or approval’ of the signatory states. Unless specifically provided for, acceptance and approval however produce the same effects, and are governed by the same rules, as ratification. For details see Final Clauses Handbook, 35–7. 23

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Article XI 14–17 secondly it must be deposited with the treaty depositary.29 Once ratified, the treaty – provided it has entered into force30 – is legally binding on the state.31 By expressly mentioning the requirement of a subsequent ratification, Article XI para. 2 clarifies that signature of the Convention merely ‘constitutes a first step to participation in the Convention’.32 This clarification was required as under the general law of treaties, it is entirely possible for treaties to be concluded by means of a ‘definitive signature’.33 15 In between signature and ratification, a state is not yet bound by the treaty. However, general treaty law as codified in Article 18 VCLT requires signatory states (unless they have made clear their intention not to ratify the treaty) to ‘refrain from acts which would defeat the object and purpose of a treaty’. This obligation of ‘nonfrustration’ applies only to ‘the object and purpose of the treaty’ and therefore is no substitute for actual consent to be bound. In the case of the Genocide Convention, it would notably cover the duty not to commit genocide, as well as the duty to prevent and punish it. As this duty represents customary international law, the practical effects of Article 18 VCLT are limited. 16 In practice, 40 of the 41 existing34 signatory states are today bound by the Convention, the only exception being the Dominican Republic. Typically, states that signed the Convention have proceeded with their ratification relatively soon afterwards, but there are notable exceptions.35 Paraguay, Bolivia and the United States each waited for decades before ratifying the treaty they had signed in late 1948. As there is no requirement to effect ratification, this is legally not problematic; however it shows that even with respect to a fundamental treaty like the Genocide Convention, treaty participation may be slowed down by lack of enthusiasm or considerations of domestic policy. 2. Accession 17

Pursuant to Article XI para. 3, states can express their intention to become bound by the Convention by acceding to it. Accession is the traditional method by which states that are not original signatories to a multilateral treaty can become a party.36 Accession produces the same legal effect as signature and ratification – through it, the state ‘establishes on the international plane its consent to be bound by a treaty’37 – but it is different in nature: whereas ratification is preceded by the state’s signature, accession is ‘a simple process’, during which the state’s consent to be bound ‘is expressed only once’,38 namely through the deposit of an instrument of accession. As Article XI para. 3 clarifies, states could accede to the Convention from 29

Aust, Modern Treaty Law and Practice (2nd ed.), 103. On this see Article XIII paras 2 and 3. 31 Final Clauses Handbook, 36. It should be noted that while it in many domestic legal systems, the term ‘ratification’ is used to describe an act of parliamentary approval to the treaty, this has nothing to do with the international law requirement. 32 Reservations opinion, ICJ Reports 1951, 15, 28. 33 See Aust, Modern Treaty Law and Practice (2nd ed.), 96. 34 See supra, fn. 27. 35 For details see the Annex 4. 36 Marchi, in: Corten/Klein, VCLTs Commentary, 309. 37 See Article 2 para. 1 lit. (b) VCLT. 38 Marchi, in: Corten/Klein, VCLTs Commentary, 309; Aust, Modern Treaty Law and Practice nd (2 ed.), 113. 30

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1 January 1950, i. e. after the end of the period during which the Convention was open for signature (but irrespective of whether the Convention had already entered into force39). In practice, accession is by far the most common way by which states express 18 their consent to be bound by the Genocide Convention. Of the 142 current state parties listed by the depositary, almost two–thirds have acceded to the Convention (90).40 Monaco was the first state to do so on 30 March 1950, with eleven more current state parties following before the Convention entered into force on 12 January 1951. 3. Succession to the Genocide Convention While not mentioned in Article XI, succession to treaties is commonly consid- 19 ered the third way by which states can express their intention to become bound by a given treaty. State succession is understood to mean the change of sovereignty over territory.41 It involves two states, namely the predecessor state and the successor state, of which the latter is a new legal subject, that is, it does not simply continue the legal personality of the predecessor.42 On this basis, instances of state succession are to be distinguished from cases of state identity, in which one state continues the legal personality of another. Whenever there is a change of sovereignty over a given part of territory, it must be inquired whether, and under what circumstances, the successor state is bound by treaties entered into by the predecessor state.43 The legal regime notably depends on the type of succession. If part of a territory is ceded by one state to another (cession) or if one state is absorbed by another (incorporation), the principle of ‘moving treaty frontiers’ applies – with the result that treaties of the successor state apply to the entirety of its territory. By contrast, succession raises real problems if new states emerge on the territory of existing states or dependent territories (separation; dismemberment; independence). This question is relevant because of the large number of new states that have emerged since 1948 – notably as a result of decolonization and of the break-up of existing states such as the Soviet Union or Yugoslavia. Unlike the modalities of expressing consent to be bound examined so far, in these settings, the succession of states to the Genocide Convention raises questions of a fundamental character. This is so because the rules regulating state succession to treaties are by no means agreed, and the 1978 Vienna Convention on Succession of States in Respect of Treaties (as the main attempt at codification) has only partly succeeded in shaping international practice.

39

See Article 15 VCLT. For details see Villiger, VCLT Commentary, 219. See the Annex 4. The figure does not include states which – such as the German Democratic Republic or the Republic of (South) Viet-Nam – at one point acceded, but later ceased to be a party. For further details see Article XIV, mn. 15. 41 For a more detailed definition see Article 2 para. 1 lit. (b) of the 1978 Vienna Convention, pursuant to which succession means ‘the replacement of one State by another in the responsibility for the international relations of territory’. 42 See Article 2 para. 1 lit. (c) and (d) of the 1978 Vienna Convention. 43 In this respect, succession to treaties constitutes the key aspect of state succession. Other aspects, on which the international community has sought to provide legal certainty, include succession with respect to property, archives and debts addressed in the 1983 Vienna Convention. For brief comment on succession to responsibility see infra, mn. 27. 40

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Article XI 19–24 The subsequent comments thus by no means exhaust the topic, but merely provide a brief overview.44 As part of that, three aspects need to be addressed. a. The possibility of succeeding to the Convention 21

Given the silence of the Convention, it is worth to begin by observing that states can become bound by the Convention by way of state succession. In practice, this has not seriously been questioned: in 1962, the Democratic Republic of the Congo (then Republic of the Congo) became the first state to deposit an instrument of succession to the Convention; as of present, the depositary lists 11 states as having become bound by way of succession.45 Notwithstanding this evidence, in the Genocide cases, the Federal Republic of Yugoslavia argued that as Article XI was silent on the matter, Bosnia and Croatia could not have succeeded to the Convention. In response, the ICJ in the (Croatian) Genocide case clarified that Article XI could not be construed to exclude ‘the continuation of, or succession to, the treaty rights and obligations of a predecessor state, in the manner and on the conditions recognized in international law.’46 b. Conditions governing succession; automatic succession

While the possibility of succeeding to the Convention is generally admitted, there is considerable debate about the conditions governing succession. Treaty practice mentioned in the preceding paragraph clearly confirms one possible way: States can succeed by depositing with the treaty depositary an instrument of succession.47 In order to enhance clarity and predictability, the UN Secretary General requires declarations of succession to emanate from individuals capable of representing the state on the international plane and to be specific (i. e. clearly to identify the treaty concerned).48 If these requirements are met, consent to be bound is clearly expressed. 23 The real question is whether even in the absence of a specific declaration states can be considered to have succeeded to the Convention. Notably, there is considerable support for the notion of ‘automatic succession’ to the Genocide Convention – or in other words the view that the successor state should be required (or at least presumed) to continue the treaty membership of the predecessor state.49 The arguments in favour of this view are powerful: automatic succession would promote stability and continuity in treaty relations and ensure the continued participation in a ‘world order treaty’ such as the Genocide Convention. That it should be advocated is thus not surprising. More particularly, two variations of the ‘automaticity thesis’ are prominent. 24 The broader approach is that successor states emerging from the separation or dismemberment of existing states should, as a general matter, be bound by treaties entered into by ‘their’ predecessor. This general rule would then equally apply to 22

44

For detailed accounts see notably Zimmermann, Staatennachfolge; and Pazartzis, La succession d’Etats. The Genocide Convention is specifically addressed by Milanovic, in: Gaeta, Genocide Convention, 484–93; Schabas, Genocide in Int’l Law (2nd ed.), 599–605; and Craven, BYIL 68 (1997), 127. 45 For details see the Annex 4. 46 ICJ Reports 2008, 412, para. 113. 47 This is typically done soon after the emergence of the new state; however, international law prescribes no time-limit: see Depositary Practice, para. 289. 48 Depositary Practice, paras 286–310. 49 On the following see notably Kamminga, EJIL 7 (1996), 469; Rasulov, EJIL 14 (2003), 141.

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the Genocide Convention. This broader approach informs the 1978 Vienna Convention, which, in its Article 34, posits that, as a general rule, ‘any treaty in force … in respect of the entire territory of the predecessor state continues in force in respect of each successor State’.50 The main exception to this general rule is to be found in Article 16, pursuant to which newly-independent states remain free to choose which treaties they intend to succeed to. To the extent that Article 34 applies, it is clear that indeed, successor states emerging from the separation or dismemberment of existing states automatically succeed to the Genocide Convention. That said, Article 34 only rarely applies: more than three decades after its adoption, the 1978 Convention only binds 22 states, and pursuant to its Article 7 para. 1, it does not apply to instances of state succession preceding its entry into force on 6 November 1996.51 What is more, the principle of automatic succession enunciated in Article 34 has been one of the main reasons for the Convention’s relative lack of appeal, and states have not accepted the categorical distinction between newly-independent states (which remain free to choose) and other successor states (which are automatically bound). International practice since 1978 provides little support for it; in fact, many states have stated clearly that they would not accept the 1978 Convention because of Article 34. Given this evidence, Article 34 thus does not represent customary international law.52 As a variation on the theme of ‘automatic succession’, there is support for a 25 narrower claim pursuant to which successor states are automatically bound by important treaties of a humanitarian character, including the Genocide Convention. With respect to these treaties, the political argument in favour of automaticity is indeed powerful: where treaties protect fundamental rights of individuals, it is particularly important to avoid temporal ‘gaps’ in the system of protection. In this perspective, rights once conferred upon individuals have been described as ‘vested rights’ unaffected by the transfer of sovereignty over territory.53 This narrower claim of automaticity enjoys considerable support and – as will be shown below54 – may have influenced the interpretation of succession declarations. However, just as with the broader claim, it is hard to bring in line with international treaty practice. As for the practice of states, successor states that have emerged since the adoption of the Genocide Convention have simply not considered themselves to be automatically bound by it: as noted above, many have specifically notified the depositary that they would succeed.55 More importantly, many other successor states – notably 50

Article 34 para. 1 lit. a of the 1978 Vienna Convention. For exceptions see Article 34 para. 2. For details see Multilateral Treaties Deposited with the Secretary General, available at http:// treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXIII-2&chapter=23&lang=en. Pursuant to Article 7 paras 2 and 3, states can declare that they intend to apply the Convention to instances of State succession prior to 6 November 1996; such declarations have e. g. been submitted by the Czech Republic and Slovakia. 52 Brownlie, Principles (7th ed.), 661–2; Aust, Modern Treaty Law and Practice (2nd ed.), 370–1; Cassese, International Law, 78; Milanovic, in: Gaeta, Genocide Convention, 486. 53 See notably Human Rights Committee, General Comment 26 (61): Continuity of Obligations, reproduced in ILM 34 (1995), 839; Kamminga, EJIL 7 (1996), 469. 54 See infra, mn. 26. 55 This e. g. applies to the Bahamas, Fiji, the Democratic Republic of the Congo (to all of which the Convention, prior to independence, had been extended pursuant to Article XII), as well the successor states of the former Yugoslavia: see Annex 4. As noted by Zimmermann, this practice leaves open whether the notification of succession is declaratory or constitutive (State Succession, in: MPEPIL, para. 7). 51

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Article XI 25–27 those emerging during the break-up of the Soviet Union – decided to accede (rather than succeed) to the Convention, which would have not been possible had they already been bound by succession.56 This diverse body of practice suggests that states (including those emerging in the 1990s) continue to exercise discretion whether they should become bound by the Convention, and if so, by which modality. What is more, depositary practice points in the same direction: just as with other human rights treaties, the UN Secretary General has consistently required specific declarations of succession before considering a state to be a party to the Genocide Convention.57 Finally, the ICJ’s approach is at best ambiguous. Having perhaps been ‘somewhat sympathetic’58 to the automaticity thesis in its 1996 judgment in the (Bosnian) Genocide case, the Court has since consciously avoided to engage with the argument: hence in the (Croatian) Genocide case, it went out of its way to ‘construe’ a very generally-worded proclamation of state continuity as amounting to a declaration to succeed to the Genocide Convention.59 In so doing, it chose not to entertain Croatia’s alternative claim of automatic succession. 26 In the light of these arguments, the better interpretation of the lex lata is that, under contemporary international law, states do not automatically succeed to the Genocide Convention.60 In order for them to become bound by way of state succession, they need to submit a declaration which gives effect to their intention to be bound. It is in the interpretation of this declaration that the automaticity thesis arguably brings about a modification of the traditional view. The ICJ’s judgment in the (Croatian) Genocide case may suggest that for a treaty as fundamental as the Genocide Convention, even broadly-worded statements not specifically referring to the Convention will be regarded as sufficient to express the required intention.61 Whether this (surprisingly) liberal approach will influence depositary or state practice remains to be seen. c. Effects of succession 27

If a state succeeds to the Genocide Convention, treaties binding the predecessor state become binding to the territory affected by the change of territorial sovereignty. In instances of cession or incorporation, a treaty will simply be extended to the newly-‘acquired’ territory of a state already bound by the Convention.62 If a new state emerges, the successor state(s) ‘take(s) over’ the treaty membership of the predecessor state. While there is some uncertainty relating to the time at which 56

This e. g. applies to Burundi, Tonga and St. Vincent and the Grenadines (all covered by declarations pursuant to Article XII), as well as many of the successor states of the former Soviet Union, such as Kazakhstan, Kyrgyzstan, Georgia, Armenia, Azerbaijan, and the Republic of Moldova. 57 See Depositary Practice, paras 303–7. 58 Milanovic, in: Gaeta, Genocide Convention, 488. See ICJ Reports 1996, 595, paras 17–22. 59 ICJ Reports 2008, 412, paras 98–117. 60 For a similar view see Milanovic, in: Gaeta, Genocide Convention, 490–1. With respect to human rights treaties more generally, see e. g. Aust, Modern Treaty Law and Practice (2nd ed.), 371. Zimmermann notes that the position ‘remains somewhat doubtful’ (State Succession, in: MPEPIL, para. 15). 61 ICJ Reports 2008, 412, paras 98–117. 62 Zimmermann, State Succession, in: MPEPIL, paras 8–9; Aust, Modern Treaty Law and Practice (2nd ed.), 370 and 372. This e. g. applies to Hong Kong, Macao (covered by China’s treaty membership), Walvis Bay (Namibia) and the German Democratic Republic (Germany).

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succession becomes effective,63 this is in principle accepted. Conversely, it is important to note what succession does not necessarily imply: notably it does not automatically mean that the successor state would accept responsibility arising from breaches of the Genocide Convention by a predecessor state that has ceased to exist.64 Unless there are indications to the contrary (such as in a devolution agreement), state succession to the Convention thus should be viewed as producing effects ex nunc.65 Questions of succession to responsibility follow a separate regime, which in itself is complex and by no means agreed.66

III. The depositary In addition to clarifying which states may become parties, and how they can 28 express consent to be bound, Article XI prescribes to whom instruments expressing consent to be bound are to be addressed. This is the least controversial aspect of the provision. Pursuant to parasgraphs 2 and 3, instruments of ratification and accession are to be deposited with the Secretary-General; and the same applies to notifications of succession.67 Article XI thus indirectly designates the Secretary General as the treaty depositary. This is taken up in Articles XVII-XIX, which spell out the tasks of the treaty depositary in some detail. Given the UN’s role in the drafting of the Genocide Convention, the Secretary-General was the obvious choice for the role of the treaty depositary. As a general rule, treaties adopted within the United Nations are deposited with the Secretary-General who in this way has assumed responsibility for hundreds of multilateral agreements.68 Within the United Nations Organization, the actual depositary functions are carried out by the Treaty Section of the UN Office of Legal Affairs. D. Concluding observations Article XI stipulates how states can become bound by the Convention and 30 declares the UN Secretary-General as the treaty depositary; in this respect, it is an essential provision. Its distinction between signature/ratification on the one hand, and accession on the other, is common to multilateral treaties, even though subsequent practice has adopted the even more flexible language of ‘ratification, acceptance or approval’. Insofar as Article XI distinguishes between states eligible to participate (viz., UN members) and states requiring an invitation to join (viz., all others), its approach has not been followed in subsequent multilateral treaties, which adopt a more open language. 63

See Article XIII, mns 12–4. See e. g. Monnier, AFDI 8 (1962), 65; Oppenheim’s International Law, vol. I, 218 (distinguishing acknowledged debts) (each with references). 65 Hence, in the Croatian Genocide case, the ICJ held that, having succeeded to the Genocide Convention on 27 April 1992, the Federal Republic of Yugoslavia, ‘from that date onwards, … would be bound by the obligations of a party’ (ICJ Reports 2008, 412, para. 117; emphasis added). 66 For details see notably Mikulka, in: Crawford/Pellet/Olleson, International Responsibility, 291; Dumberry, State Succession. See also Article 10 para. 2 of the ILC’s Articles on State Responsibility (providing for a transfer of responsibility incurred by liberation movements that succeed in establishing a state). 67 Depositary Practice, paras 299–301. 68 Aust, Modern Treaty Law and Practice (2nd ed.), 328. For details on the depositary function see Article XVII. 64

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Article XI 31 31

Just as many other treaty clauses on consent to be bound, Article XI fails to regulate questions of state succession to treaties, which have assumed considerable importance. Practice and jurisprudence clearly confirm that states can become bound by way of succession. They also suggest that for this to happen, successor states must express their intention to succeed; this means that at present, there is insufficient support for the ‘automaticity thesis’. In practice, successor states have regularly expressed their desire to be bound by the Convention (whether through succession or accession); this shows that participation in the Convention is regarded as an important symbol of joining the ‘family of nations’.

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Article XII Any Contracting Party may at any time, by notification addressed to the Secretary-General of the United Nations, extend the application of the present Convention to all or any of the territories for the conduct of whose foreign relations that Contracting Party is responsible. Table of Contents: A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Drafting History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Declarations under Article XII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. The territorial scope of obligations imposed by the Convention. . . . . D. Concluding Observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

mn. 1 3 5 6 10 17

A. Introduction Article XII is the only provision of the Genocide Convention that addresses the 1 territorial application of the treaty as such (as opposed to the territorial scope of a specific obligation imposed by it). It approaches this question from a very particular angle, though, namely by providing states with the option of extending the application of the Convention to territories for whose foreign relations they are responsible. This ‘colonial clause’ (or, in more neutral terms, ‘territorial application clause’) at the time proved highly contentious; yet in the light of developments since 1948, it can today be approached in a much more dispassionate way.1 By contrast, the more general question of whether obligations under the Genocide Convention bind states on their own territory (including non-metropolitan territories) only, or extend extraterritorially, has assumed considerable relevance. While Article XII does not expressly address this more general question, it could be said to provide at least a starting-point for the analysis, which is provided as part of the present entry.2 Declarations made under Article XII are to be addressed to the Secretary-General 2 as the treaty depositary and thus linked to the Convention’s provisions regulating the depositary function (Article XVII, as well as Articles XVIII and XIX). As declarations under Article XII bring the Convention into force for a particular territory, they can be seen as an ‘appendix’ to Article XI, which addresses the Convention’s entry into force for state parties. Finally, in assessing whether obligations under the Convention, as a general matter, are binding extraterritorially, it is necessary to take account of the wording of specific provisions, and of the general rules governing the territorial scope of obligations under international law. B. Drafting History The drafters’ debates about Article XII reflect the controversial nature of provi- 3 sions in multilateral treaties permitting, but not requiring, metropolitan states to 1 See Karagiannis, in: Corten/Klein, VCLTs Commentary, 740: ‘Large portions of the political and legal stakes involved in [debates about colonial clauses] are likely to be lost on a non-initiated reader today.’ 2 See infra, mns 10–6.

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Article XII 3, 4 extend treaties to non-metropolitan territories.3 A feature of many treaties of the inter-War period, clauses like Article XII came to be seen, in the UN era, as legitimising colonial arrangements.4 Perhaps reflecting the emerging anti-colonial sentiment, neither the Secretariat Draft nor the Ad Hoc Committee Draft of the Convention (nor indeed the texts prepared by the United States and France) envisaged a provision along the lines of Article XII. Only during the Sixth Committee debates did the United Kingdom propose to insert a colonial clause into the Convention.5 The ensuing debate about the merits of the British proposal clearly exposed the divisive nature of the provision. Many countries were of the view that colonial clauses legitimised colonial domination and operated as a device to deprive inhabitants of colonial territories of the benefit of the treaty in question.6 In response, the United Kingdom’s representative argued that colonial clauses were criticised on purely political grounds. Without such a clause, Britain’s adherence to the Convention would be significantly delayed as the British government would have to consult each individual self-governing British Commonwealth territory before the United Kingdom could consent to be bound.7 The Ukraine and Egypt proposed to amend the British amendment with a view to making the required declaration mandatory rather than optional.8 Iran sought a compromise solution that would have left the British amendment intact, but supplemented it by a General Assembly resolution recommending the extension of the Convention to non-self-governing territories.9 4 The eventual voting pattern reflected the sharp differences of opinion on the matter.10 The Ukrainian proposal to amend the British amendment was rejected, and Britain’s amendment carried with 19 votes to 10 (with 14 abstentions). After the United Kingdom had managed to add some qualifying language,11 the Iranian proposal for a recommendatory General Assembly resolution was adopted by a larger majority (22 to 0, with 14 abstentions).12 This was not the end, though. In the plenary debates of the General Assembly, the Soviet Union re-opened the matter: a new amendment aimed at ensuring the automatic application of the Convention to nonself-governing territories13 was narrowly rejected (19 to 23, with 14 abstentions).14 3 While commonly referred to as ‘colonial clauses’, provisions such as Article XII are broad enough to cover protectorates, mandated territories and trust territories as well as colonies and other non-self-governing territories: see Aust, Treaties, Territorial Application, in: MPEPIL, para. 2. 4 Anti-colonial sentiment notably led to the deletion, at the initiative of the Soviet Union, of existing colonial clauses from inter-war conventions such as the 1921 Convention on Traffic in Women and Children as these were adapted to facilitate the transfer of powers from the League to the UN. For details see Liang, AJIL 45 (1951), 108. 5 UN Doc. C.6./236 and A/C.6/236/Corr.1. 6 See e. g. the statements by Mr. Morozov (Soviet Union), Mr. Kovalenko (Ukrainian SSR) and Mr. Zourek (CSSR), UN Doc. A/C.6./SR 107, 471–4. 7 UN Doc. A/C.6./SR 107, 471 (Mr. Fitzmaurice). 8 UN Doc A/C.6/264; and statements by Mr. Kovalenko and Mr. Rafaat in UN Doc. A/C.6./SR 107, 471–2 and 473. 9 Statement by Mr. Abdoh, UN Doc. A/C.6./SR 107, 475. 10 See UN Doc. A/760, para. 16. 11 Namely the clarification that colonial powers would take measures ‘as feasible’: see statements by Fitzmaurice and Abdoh, UN Doc. A/C.6/SR.107, 475–6. 12 See UN Doc. A/760, para. 16. 13 UN Doc. A/766, para. 5. 14 UN Doc. A/PV.179 (in AW, at 2082).

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Marred by controversy, Article XII was eventually adopted, accompanied by the General Assembly’s recommendation that colonial powers ‘take such measures as are necessary and feasible to enable the provisions of the Convention to be extended to those [non-metropolitan] territories as soon as possible’.15

C. Interpretation Any interpretation of Article XII needs to take account of subsequent develop- 5 ments in treaty-making, two of which are particularly important. On the one hand, and perhaps predictably, express territorial application clauses have fallen out of favour within the UN system.16 Article 29 VCLT, which presumes treaties, as a general rule, to be ‘binding upon each party in respect of its entire territory’, gives expression to this sentiment. On the other hand, and less predictably, even under the new regime, states like the United Kingdom have continued to declare unilaterally whether a treaty in question would apply to their colonies and other territories; this is seen as establishing an exception to the presumption enunciated in Article 29 VCLT.17 While express colonial clauses have become rare, in substance, states responsible for the administration of non-metropolitan territories thus continue to enjoy – just as under Article XII – considerable discretion in determining the territorial scope of their treaty obligations. Against that background, the specific issue of colonial clauses can be dealt with rather succinctly. By contrast, recent practice and jurisprudence highlights differences of opinions about a more general question – namely whether the obligations imposed by the Convention should bind states extraterritorially. I. Declarations under Article XII Notifications under Article XII are unilateral declarations by which the declaring 6 states produces a particular legal effect, namely the extension of the Convention’s territorial scope. As a consequence, the Convention will be applicable in the territories designated: obligations imposed by it (such as the duties not to commit genocide, to prevent it, and to criminalise and punish it) will apply in the nonmetropolitan territories, and rights granted can be invoked in them. From this brief description, it is immediately apparent that declarations made pursuant to Article XII are relevant for those of the Convention’s provisions that are capable of territorial application. By contrast, provisions that operate irrespective of any territorial nexus – e. g. the possibility for member states to call upon the UN to take preventive action, or the protocolar rules set out in Articles X-XIX are not as such affected.18 Declarations made pursuant to Article XII are to be addressed to the UN 7 Secretary-General as treaty depositary who then informs UN member states and 15

GA Res. 260 C (III). For example, none of the major human rights treaties concluded under UN auspices contains a colonial clause similar to that of Article XII. In his Report of 1978, Special Rapporteur Ruhashyankiko subsequently stated expressly that the inclusion of colonial clauses in treaties such as Art XII of the Genocide Convention no longer reflects current UN practice: see Ruhashyankiko Report, para. 356. For further details see Aust, Treaties, Territorial Application, in: MPEPIL, paras 6–8. 17 See Depositary Practice, paras 273–5; Sinclair, Vienna Convention, 90–1. 18 See Sinclair, Vienna Convention, 87. 16

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Article XII 7–9 the states invited to join the Convention under Article XI.19 Other than that, Article XII does not lay down detailed formal requirements. Notably, the Convention does not prescribe a particular moment at which declarations have to be made (‘at any time’20) and does not address the procedure to be followed before the declaration is made; this matter will be governed by the legal rules applicable between the dependent territory and the declaring state. 8 Practice under Article XII is rather sparse, reflecting the decreasing practical importance of territorial application clauses at a time decolonisation has largely been completed. It is also due to the fact that the United Kingdom as the main supporter of Article XII (having previously argued that failure to include a colonial clause would delay its participation in the treaty regime21) only acceded to the Convention in 1970. When it eventually did accede, it extended the Convention to many of its remaining overseas territories.22 The only other declaration still listed by the depositary is that of Australia, which in 1949 had extended the Convention to all its overseas territories. Two other declarations have been ‘overtaken’ by subsequent events: Belgium’s declaration with respect to Belgium-Congo and RwandaUrundi and Portugal’s declaration covering Macao. It may be noted that the subsequent ‘fate’ of these declarations highlights the flexible character of the rules governing succession and accession to the Convention. Upon independence, two of the former Belgian colonies (Rwanda, Burundi) acceded to the Convention, while the Democratic Republic of the Congo submitted a declaration of succession.23 As noted in the commentary to Article XI, this practice may be taken to weaken claims that there should be a rule of automatic succession to the Genocide Convention.24 As regards Macao, China, upon taking over the administration from Portugal, notified the Secretary-General that the Convention (including, importantly, China’s reservation) would henceforth apply to Macao.25 This is in line with the presumption in favour of ‘moving treaty boundaries’; however raises the peculiar problem of succession to reservations.26 It is implicit in these considerations that a declaration made under Article XII ceases to be valid if the metropolitan state ceases to be responsible for the foreign relations of the non-metropolitan territory. 9 Despite the dearth of actual practice, Article XII has prompted a surprising amount of related treaty action. As a follow-up to the debates preceding the adoption of the provision, a considerable number of states have declared that they were ‘not in agreement with article XII of the Convention and conside[r] that all the provisions of the Convention should extend to Non-Self-Governing Territories, 19

Article XVII lit. (b). See Article XVII, mn. 13 for brief comment. Contrast the different approach governing reservations, which under the general rules a state can only formulate ‘when signing, ratifying, accepting, approving or acceding to a treaty’ (see Article 19 VCLT). For further details see Reservations, mn. 21. 21 Supra, fn. 7. 22 Namely Bahamas, Bermuda, British Virgin Islands, Channel Islands, Dominica, Falkland Islands (Malvinas) and Dependencies, Fiji, Gibraltar, Grenada, Hong Kong, Isle of Man, Pitcairn Island, St. Helena and Dependencies, St. Lucia, Seychelles, St. Vincent and Turks and Caicos Islands as well as Tonga: see Annex 4. 23 Annex 4. 24 See Article XI, mns 23–6. 25 See Annex 4. 26 See Article 15 of the 1978 Convention on Succession of States to Treaties; as well as Article XI, mn. 19. 20

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including Trust Territories’.27 These declarations are sometimes labeled ‘reservations’; however, their legal characterization is doubtful as they do modify the Convention in between the reserving state and states that are responsible for the foreign relations of a non-metropolitan territory.28 Presumably, given the clear language of Article XII, they should best be seen as a continuation, by other means, of the political debates preceding the adoption of the provision. Similarly, Argentina’s declaration that if another state extended the Convention to territories under Argentina’s sovereignty, ‘this extension shall in no way affect the rights of the [Argentine] Republic’ constitutes less an attempt at influencing the territorial scope of the Genocide Convention, but a re-statement of its territorial claim to the Falklands/Malvinas.29 All this suggests that even after its adoption, Article XII has continued to provoke debate, even though the real issues it raises are few.

II. The territorial scope of obligations imposed by the Convention Irrespective of the specific situation of non-metropolitan territories, a more 10 fundamental question needs to be addressed – namely whether the Convention should bind state parties with respect to conduct or events occurring outside their territory. This question has assumed considerable relevance in recent years. In this respect, the legal rules against genocide face the same questions as human rights law more generally, which has witnessed heated debates about the territorial reach of obligations, witnessed by high-profile cases such as Bankovic´30, Loizidou31 and Lo´pez Burgos32 and controversies about Guanta´namo and other ‘legal blackholes’.33 Yet, while the questions arising are similar, the answers are not. Debates about the territorial scope of obligations imposed by human rights treaties typically proceed from an agreed starting-point: opening provisions typically define the territorial reach of the treaty by obliging states to ensure that all treaty rights could be enjoyed by ‘individuals within its territory and subject to its jurisdiction’.34 By contrast, the Genocide Convention contains no equivalent general clause. This has affected debates; it has meant that instead of trying to lay down one general regime governing the territorial scope of the Convention as such, each of the main obligations imposed by it follows a different rule. This ‘obligation-specific’ approach to the question of course complicates matters, but is better able to accommodate the substance of, and considerable differences between, the respective obligations. It may also be acceptable as there are not that many obligations imposed by the Convention that can be applied in relation to a given territory: notably the duties not to commit genocide, to prevent it, and to criminalise and punish it. 27 Reservation/declaration by Romania. Similar or identical declarations have been made by Albania, Algeria, Belarus, Hungary, Mongolia, Poland, the Soviet Union, Ukraine and Vietnam: see Annex 4. 28 Reservations, mn. 27. 29 See Annex 4. 30 Bankovic ´ v Belgium et al, ECtHR Reports 2001- XII, 333. 31 Loizidou v Turkey, EHRR 23 (1996), 513. 32 Lo ´pez Burgos v Uruguay, UN Docs CCPR/C/13/D/52/1979. 33 See Steyn, ICLQ 53 (2004), 1. 34 See Article 2 CCPR. Along similar lines, Article 1 ECHR requires states to ‘secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.’

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Article XII 11–13 Before outlining the respective ‘obligation-specific’ regimes, it is worth noting that even in the absence of an express clause along the lines of Article 1 ECHR or Article 2 CCPR, it would have been entirely possible to derive a general rule governing the territorial scope of the Convention from Article XII. In permitting (but not requiring) the extension of the Convention to non-metropolitan territories, Article XII could have very well been read to imply a general approach to the question. If Article XII requires a declaration for the Convention to apply to nonmetropolitan territories – so the argument might run – then would it not be at least plausible to say that without a declaration, it does not apply outside a state’s metropolitan territory, let alone extraterritorially?35 Yet this approach – which would result in a very restrictive rule but, it is submitted, is based on a plausible reading of Article XII – has found little support. In fact, Article XII is hardly ever mentioned in debates about the territorial scope of obligations.36 This may be understandable as the result may have been too difficult to accept. Yet by effectively ignoring Article XII, bodies like the ICJ have ‘disconnected’ debates about the territorial scope of obligations from the one provision of the Convention that expressly addresses the matter.37 12 With respect to one of the three obligations, the duty to prosecute, there is little room for debate. Article VI makes clear that this obligation does not apply to genocide committed extraterritorially. It expressly restricts the duty to prosecute ‘persons charged with genocide’ to ‘the State in the territory of which the act was committed’. And while this may seem rather restrictive, the plain meaning admits little doubt.38 This textual approach means that the duty to prosecute genocide is more limited territorially than duties to prosecute under other human rights instruments, which – in line with the typical general territorial clauses – also apply where the breach is committed outside a state’s territory but in an area under its jurisdiction. This is a curious result which indicates that in some respects the Genocide Convention is a ‘pre-modern’ instrument. The effects of an overly restrictive approach however are avoided if – as noted in the commentary to Article IV – the duty to punish is taken seriously, viewed separately from the duty to prosecute before domestic courts, and considered to require action going beyond that mandated by Article VI. 13 The situation is different with respect to the duty not to commit genocide. Article I of the Convention does not clarify the territorial scope of this prohibition, which in any event is only derived from the Convention by implication rather than spelled out expressly.39 This silence could have been taken to affirm the general rule of Article 29 VCLT pursuant to which obligations apply only on a state’s territory. However, this is not how it has been understood. Rather, the silence of Article I is 11

35

For comment see Milanovic, in: Gaeta, Genocide Convention, 482. With respect to the ICJ’s judgments in the Bosnian Genocide case, Milanovic rightly speaks of a ‘startling omission’ (in: Gaeta, Genocide Convention, 482). 37 For an (albeit brief) attempt to explain the relationship between colonial clauses and the territorial regime of a human rights treaty, see the Loizidou judgment of the European Court of Human Rights: Loizidou v Turkey, EHRR 23 (1996), 513, paras 86–8. 38 In line with this, in its judgment in the Bosnian Genocide case, the ICJ recognised that Article VI is ‘subject to an express territorial limit’ and ‘only obliges Contracting Parties to institute and exercise territorial criminal jurisdiction’ (ICJ Reports 2007, 43, paras 184 and 442). 39 For details see Article I, mns 51–81. 36

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contrasted to the express territorial limitation of Article VI, suggesting that, unlike with respect to the duty to prosecute, no express provision stands in the way of a broader scope of application. Thus, when called upon to address the matter in the (Bosnian) Genocide case, the ICJ noted that the prohibition not to commit genocide was not ‘territorially limited’,40 but applied ‘to a State wherever it may be acting’.41 This reading is indeed convincing, as it is the only interpretation that takes account of the absolute nature of the duty not to commit genocide. It is not an unusual construction either, but means, for example, that the duty not to commit genocide follows the same territorial regime as the rules against the commission of war crimes, which are quite naturally understood to apply whenever and wherever a state is engaged in an armed conflict governed by international humanitarian law.42 Lastly, in practice, the requirement of attribution protects states against any overreach:43 in line with general international law, they will be responsible for having committed genocide only if conduct amounting to genocide is attributable to them, which typically will only be the case if they act through their organs or direct and control conduct of other individuals.44 There is considerably more disagreement about the territorial scope of the duty to 14 prevent genocide. This disagreement results from the Convention’s failure to provide a comprehensive regulation of its application ratione loci. It also reflects uncertainty about the precise content of the duty to prevent, which is by no means common in international human rights law and which, if overstretched, it is widely felt, might result in legal duties that states are simply unable or unwilling to fulfil.45 These considerations are reflected in the ICJ’s 2007 judgment in the Bosnian Genocide case. In it, a majority of the Court considered that just like the duty not to commit genocide, the duty to prevent was not territorially limited, but applied to acts of genocide wherever committed. This was clearly a bold position, for which the majority drew support from the text of Article I (which did not impose any express territorial limitations).46 As a result, the majority accepted that the ‘two distinct yet connected obligations’47 to prevent and punish genocide follow very different territorial regimes, the former applicable with respect to genocide occurring anywhere on the world, the latter limited to genocide occurring on the state’s own territory. The majority’s bold approach was ‘moderated’ by its interpretation of the substantive content of the duty, which was dependent on the position of the state and its chances of influencing a particular course of events; as a consequence, it became even more difficult to specify the precise content of the duty to prevent.48 Judge Tomka disagreed with the majority. In his view, the duty to prevent genocide 40

ICJ Reports 1996, 595, para. 31. ICJ Reports 2007, 43, para. 183. 42 See common article 1 of the Geneva Conventions, pursuant to which ‘[t]he High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.’ 43 For an application of these principles see ICJ Reports 2007, 43, para. 379; and see Article I, mns 76–81, for comment. 44 For details see Articles 4–11 of the ILC’s Articles on State Responsibility. 45 For further details see Article I, mns 35–8; as well as Gattini, EJIL 18 (2007), 695; Zimmermann, in: Essays Simma, 629. 46 ICJ Reports 2007, 43, para. 183. 47 ICJ Reports 2007, 43, para. 425. 48 ICJ Reports 2007, 43, paras 183 and 431, where the Court spoke of a ‘due diligence’ obligations requiring states to take measures ‘as the circumstances permit’. 41

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Article XII 14–17 needed to be limited by a threshold criterion: drawing on general principles of human rights law, he held that only on its territory, or in areas under its jurisdiction, could a state be expected to prevent genocide.49 15 Neither of these two approaches is beyond doubt, but on balance, the majority’s view seems based on a plausible construction of Article I.50 As the point is addressed elsewhere in more detail, suffice it to note that while Judge Tomka’s approach is ‘more focused’,51 it imports the general concept of jurisdiction into the Convention, which is not germane to it. It allows for a more specific determination of the content of the duty of prevention, but makes it dependent on prior findings on jurisdiction (itself a controversial and by no means watertight concept). By contrast, the majority’s view seems best to give effect to the object and purpose of the Convention. The majority’s construction no doubt constitutes an ambitious attempt to give effect to the duty of prevention enshrined in Article I – but it translates the often-proclaimed ‘humanitarian and civilizing object’ of the Convention into a global obligation to prevent genocide. 16 In summary, it may be correct to describe the territorial application of Convention’s obligation as ‘fragmented’:52 of the three core obligations imposed upon states, two (the duty to prevent and the duty not to commit genocide) are not territorially limited; they apply with respect to genocide occurring everywhere in the world. By contrast, the duty to prosecute at set out in Article VI is subject to a very strict territorial regime. This of course has important consequences for the ‘real’ subject of Article XII, namely declarations extending the territorial scope of the Convention. In the light of the preceding considerations, such declarations lose much of their (already limited) relevance. Even without a declaration, the metropolitan state in question is under a duty not to commit genocide within its dependent territories and to prevent genocide from occurring there. The one core obligation that a declaration will extend territorially is the duty to criminalise and punish genocide. In addition, and subject to the legal regime governing the relations between the metropolitan state and the non-metropolitan territory in question, declarations could also broaden the circle of individuals whose conduct could be attributed to the metropolitan state. Yet given the liberal interpretation of the territorial scope of obligations imposed by Article I of the Convention, even where a declaration is lacking, it is today difficult to argue that ‘millions [of inhabitants] … remain outside the scope of the convention, … left to the arbitrary action of the colonial powers’.53

D. Concluding Observations 17 The preceding considerations illustrate how much treaty-making has developed since the Convention was drafted. The ‘real’ subject of Article XII has been overtaken by developments; were the Convention to be negotiated today, it would presumably not include a territorial extension clause. Conversely, the preceding 49

ICJ Reports 2007, 43, separate opinion Tomka, paras 67–8. For a much fuller analysis see Article I, mns 35–8 51 Milanovic, in: Gaeta, Genocide Convention, 481. 52 Milanovic, in: Gaeta, Genocide Convention, 483. 53 See the statement by Mr. Morozov during the debates in the Sixth Committee: UN Doc. A/C.6/ SR.107, 471. 50

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discussion also shows that, while regulating ‘general’ and ‘final’ matters in considerable detail, the Convention has important gaps. Contemporary international lawyers have become very aware of the importance of including provisions on the territorial scope of obligations imposed by a treaty – a matter ignored by the drafters of the Genocide Convention. As it happens, it largely has fallen upon the ICJ to develop general rules governing the territorial scope of the Convention’s obligations. This it has done in the (Bosnian) Genocide case, and while the Court’s reasoning is not beyond doubt, its findings have not been criticised openly. Future practice will need to show whether the contentious element of the Court’s exercise in ‘gap-filling’ – namely the recognition of a ‘worldwide’ duty to prevent genocide – will be accepted, and more importantly, whether that duty can be filled with concrete meaning. In line with the majority’s approach – and unlike under general human rights treaties like the CCPR or ECHR – this however does not depend on general rules governing the territorial scope of the Convention, but on the substantive content of the obligation in question.

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Article XIII On the day when the first twenty instruments of ratification or accession have been deposited, the Secretary-General shall draw up a proce`s-verbal and transmit a copy thereof to each Member of the United Nations and to each of the nonmember states contemplated in article XI. The present Convention shall come into force on the ninetieth day following the date of deposit of the twentieth instrument of ratification or accession. Any ratification or accession effected subsequent to the latter date shall become effective on the ninetieth day following the deposit of the instrument of ratification or accession. Table of Contents: A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Drafting History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Entry into force of the Convention as such . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Entry into force for states consenting to be bound subsequently . . . . D. Concluding Observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

mn. 1 4 6 7 11 15

A. Introduction Article XIII regulates the entry into force of the Convention. Just as other 1 multilateral treaties that are open to accession, it distinguishes between two aspects: (i) the (‘general’) entry into force of the Convention as such, which is addressed in Article XIII para. 2; and (ii) the entry into force of the Convention for a state that expresses its consent to be bound at a later stage, which is addressed in Article XIII para. 3. Taken together, these two rules constitute the core of Article XIII. In addition, Article XIII para. 1 contains an ancillary regulation; it requires the UN Secretary-General as the depositary to inform the member states that the Convention as such is due to enter into force. The entry into force of a treaty may be seen as the culmination of the treaty- 2 making process; it is only once the treaty has entered into force (whether as such or for a given state) that the substantive rights and obligations arising under it become binding. In this respect, Article XIII may be said to be of fundamental importance. From the terms of it, it is a rather straightforward provision, however, and difficulties that have arisen relate less to the rules formulated in the three paragraphs, than to issues which were left unaddressed, such as the validity, for the purposes of Article XIII, of instruments of ratification or accession that contained reservations (possibly attracting objections), or the adaptation of Article XIII to instances of state succession. Article XIII is part of the protocolar provisions of the Convention and needs to be 3 read in that context. In referring to ‘ratification or accession’, it employs the different forms of expressing consent to be bound introduced in Article XI. In imposing the Secretary-General the duty to inform parties of the imminent entry into force, it spells out one aspect of the Secretary-General’s depositary function established in Article XI, which again is picked up in Article XVII lit. (c). Finally, Article XIII is logically prior to Articles XIV and XV, which determine the Convention’s duration in force. Tams

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Article XIII 4–7 B. Drafting History 4 During the drafting process, Article XIII prompted little debate. That the Convention should regulate its entry into force seemed obvious, and provision to this effect was made in Article XVIII of the Secretariat Draft1 and Article XIII of the Ad Hoc Committee Draft,2 both of which envisaged entry into force after a period of 90 days. Once the decision had been taken to distinguish between two forms of expressing consent to be bound (signature and ratification on the one hand, accession on the other),3 this had to be reflected in what was to become Article XIII. 5 The only significant issue that arose in the drafting of Article XIII related to the number of parties required to bring the Convention into force.4 The Secretariat’s Draft did not fix the required minimum number of states despite describing the issue as one of ‘special importance’.5 Eventually, it fell to the Sub-Committee of the Ad Hoc Committee to consider the issue. The United States had proposed to set the minimum number at twenty;6 this was subsequently adopted and endorsed by the Ad Hoc Committee itself.7 Fixing the number at twenty was in fact a compromise between those states who wanted a smaller number and those who wanted a greater number.8 Nevertheless, the issue was not subsequently debated and the minimum of twenty was adopted in the final text of the Convention. C. Interpretation 6 Even though the terms of Article XIII are reasonably clear, the provision has given rise to debate. The following discussion distinguishes between the two core issues mentioned above, namely entry into force of the Convention, and its entry into force for a given state.9 I. Entry into force of the Convention as such 7 Pursuant to Article XIII para. 2, the Convention enters into force ‘on the ninetieth day following the date of deposit of the twentieth instrument of ratification or accession’. This refers to the general entry into force of the Convention. As the Convention contains no provision on provisional application,10 the entry into force in accordance with Article XIII is an important watershed: it is only after its general entry into force that the Convention can be the source of rights and obligations of states parties. 1

UN Doc. E/447, 56. UN Doc. E/794, 43. 3 See Article XI, mns 12–8. 4 Robinson, Genocide Convention, 111. 5 UN Doc. E/447, 19. 6 UN Doc. E/623 (draft article XIV). 7 See UN Doc. E/AC.25/10, 6; UN Doc. E/794, 43. 8 See Robinson, Genocide Convention, 112. For example, Siam proposed the number of states required for entry into force should be no less than half the total number of member states of the United Nations (at that time 58) (see UN Doc. E/623/Add. 4); while the Soviet Union had argued for twenty-nine (UN Doc. E/794, 43). 9 In addition to these, there is a third ‘entry into force’, as provision relating to the entering into force of the Convention (incl. Article XIII) are immediately effective (see infra, mn. 11). 10 See Article 25 VCLT. 2

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As clarified by Article XI, ratification and accession are the two ways mentioned 8 in the Convention by which a state can declare its consent to be bound.11 Insofar as Article XIII provides for a period of ninety days before the entry into force of the Convention, it is in line with international practice: multilateral treaties typically include some form of waiting period, so to allow the depository to give notice to states as envisioned in Article XIII para. 1 and XVII lit. (c) and to enable states to prepare for the Convention’s entry into force.12 Compared to other treaties, the Genocide Convention entered into force relatively 9 soon after its adoption. Ethiopia was the first state to ratify it on 1 July 1949. Between then and September 1950, eighteen other states followed (eleven by way of ratification, seven through accession). Two of these states, Bulgaria and the Philippines, had entered reservations, to which other states had objected. As the rules governing reservations at the time were rather unclear, this gave rise to doubts as to their status vis-a`-vis the Convention.13 Since the entry into force of the Convention depended on twenty instruments or ratification or accession, there was a distinct possibility that the Secretary-General as depositary would have been required to take a view on the legal effects of the reservations and objections. Eventually, this problem was avoided because on 14 October 1950, no less than five further states deposited their instruments of ratification or accession.14 This meant that on 14 October, less than two years after the adoption, twenty-four states had consented to be bound by the Convention. Irrespective of the uncertainties surrounding the status of Bulgaria and the Philippines, the threshold of twenty ratifications/accessions therefore had been reached. In line with Article XIII para. 1, the Secretary-General thus prepared the proce`s-verbal,15 and the Convention entered into force on 12 January 1951. Since then, it has remained in force without interruption. The problem of reservations came to be addressed by the International Court of Justice in its Advisory Opinion on Reservations to the Genocide Convention, but has continued to prompt debate.16 The previous considerations concern the entry into force of the Convention. They 10 need to be qualified in one respect, namely with respect to the entry into force of Article XIII itself, as well as of other procedural provisions governing the entering into force of the Convention. The matter is not specific to the Genocide Convention, but one of the logical ‘puzzles’ of the law of treaties generally: how can the provisions on entry into force and related issues be applied if the treaty itself only enters into force subsequently? The Convention itself is silent on the matter. Article 24 para. 4 VCLT addresses it by providing that provisions addressing preliminary matters such as the procedure of becoming bound, entry into force, the role of the depository, for example, apply from the moment the treaty is adopted.17 This has been held to 11 As noted in the commentary to that provision, a third option is to become bound by succession: see Article XI, mns 19–27. 12 See Robinson, Genocide Convention, 112; Aust, Modern Treaty Law and Practice (2nd ed.), 168. 13 See Schabas, Genocide Convention (2nd ed.), 609, for further information about the incident, and see the commentary on Reservations for further detail on the substantive legal issues raised by it. 14 Schabas pointedly notes that ‘[t]his was a godsend for the Secretariat’ (Genocide Convention (2nd ed.), 609). 15 The proce `s-verbal is reproduced in ICJ, Reservations to the Genocide Convention, Pleadings, Oral Arguments, Documents, paras 112–3. 16 ICJ Reports 1951, 15. For details see Reservations, especially mns 4–6. 17 See Mahiou, in: Corten/Klein, VCLTs Commentary, 1040-4.

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Article XIII 10–12 reflect customary international law, even though different justifications are put forward to explain the ‘immediate effect’18 of treaty clauses prior to the treaty’s general entry into force.19 On the basis of these considerations, ‘entry into force’ in the sense of Article XIII para. 2 should be understood to refer to the provisions of the Convention that do not, by their nature, produce immediate effects. By contrast, Article XIII itself, as well as the rules found in Articles XI, XVII and XVIII applied from the time of the adoption of the Convention.

II. Entry into force for states consenting to be bound subsequently 11 While Article XIII para. 2 addresses the entry into force of the Convention as such, Article XIII para. 3 clarifies when it enters into force for states that express their consent to be bound at a later stage. In this scenario, the states in question join a treaty that is already in force. Their consent thus merely increases the number of states bound by the Convention. Notwithstanding this difference, Article XIII para. 3 is modelled on Article XIII para. 2. For once, it describes the required act expressing consent to be bound in the same way (deposit of an instrument of ratification or accession). What is more, it provides for a waiting period of ninety days before that expression of consent produces legal effects – again so as to allow time for states to prepare for the coming into force.20 While typically a mere formality, it may be noted that at least occasionally, this waiting period can become practically relevant. The Legality of Use of Force Case between Yugoslavia and Portugal might have provided a case in point: Proceedings were instituted on 29 April 1999. Portugal, having deposited its instrument of accession on 9 February 1999, only became bound by the Convention’s provisions on 10 May 1999;21 presumably therefore, it could not have been sued. Finding that Yugoslavia did not have access to the Court, the Court did not have to address the matter.22 12 One matter not addressed in Article XIII para. 3 is the question of succession to the Convention. This omission is not surprising, but in line with Article XI (which fails to mention succession as a way of becoming bound) and with treaty-making practice more generally. As noted in the commentary to Article XI,23 the Convention’s failure to regulate the matter does not mean that states were prevented from succeeding to the Convention. Any doubts on that were dispelled by the preliminary objections judgment in the (Croatian) Genocide case, in which the Court noted that Article XI could not be read to exclude the possibility of succession.24 For the purposes of Article XIII, a consequential question must be addressed: it needs to be clarified at which point in time the succession – in the words of Article XIII para. 3 – ‘shall become effective’ for the successor state. The matter was of considerable 18

Reuter, Introduction, 62 (‘effet imme´diat’). Some see this as an instance of retroactive application; others rely on the consent given when the text was adopted; still others find the source of the obligation in Article 24, para. 4 (or its customary equivalent) itself. For comment see Villiger, VCLT Commentary, 347–8. 20 Robinson, Genocide Convention, 112. 21 See Legality of Use of Force (Serbia and Montenegro v. Portugal), ICJ Reports, 2004, 1160, paras 94–5; and already the Court’s order, ICJ Reports 1999, 656, para. 41. 22 See Legality of Use of Force (Serbia and Montenegro v. Portugal), ICJ Reports 2004, 1160, para. 117. 23 See Article XI, mns 19–27. 24 ICJ Reports 2008, 412, para. 113. 19

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importance in the (Bosnian) Genocide case, in which Bosnia had made a formal declaration of succession on 29 December 1992, months after it had come into existence as a state and (crucially, for the purposes of the litigation) after many of the most horrendous crimes it brought before the Court had been committed. In this situation, it had to be determined whether its declaration of succession, to the extent that it was required for Bosnia to become bound, applied retroactively to the date of independence.25 In its 1996 preliminary objections judgment, the Court circumvented the issue by relying on the jurisdictional clause of Article IX: this, in its view, was not temporarily limited and thus could be invoked to establish the Court’s jurisdiction over acts that occurred before the Convention entered into force for all parties.26 Yet for the reasons given in the commentary to Article IX, that interpretation is not fully convincing.27 As regards the law of state succession, the more convincing construction would 13 be to accept that, unless the matter is specifically addressed (such as in a devolution agreement or declaration), succession takes effects from the moment the successor state comes into existence.28 This is generally accepted for instances of automatic succession.29 Practice with respect to declarations of succession is more varied. However, when bearing in mind that succession is a way of ensuring continuity in treaty relations,30 much speaks in favour of recognising that a declaration of succession, as a general rule, should produce retroactive effects. This approach finds support in the practice of treaty depositaries who, even in cases of declared successions, have typically considered successor states to be bound ab initio, i. e. from the date on which they came into existence.31 Finally, this approach ensures that all instances of succession are governed by the same approach, which may be one way of bringing about at least a measure of clarity and predictability into an area of law that is renowned for its complexity. For the purposes of Article XIII para. 3, the approach advocated in the preceding 14 paragraph means that where a state becomes bound by the Convention through succession, and absent any clear indication to the contrary, it does so from the date of its coming into existence. This applies even where the declaration of succession was made at a later stage. What is more, consent to be bound is effective immediately, in that it does not depend on the lapse of a waiting period.32

25

See Milanovic, in: Gaeta, Genocide Convention, 487 and 489. ICJ Reports 1996, 595, para. 34. 27 See Article IX, mns 38–42. 28 For a detailed assessment see Zimmermann, Staatennachfolge, 787–91. 29 Zimmermann, Staatennachfolge, 787–91. Examples include the cession of territory or the incorporation of one state into another. By contrast, it is highly controversial whether successor states emerging on the territory of existing states should automatically succeed to the Genocide Convention: for comment see Article XI, mns 23–6. 30 In the words of Menon, ‘[t]he notion of continuity is inherent in succession’ (RDISDP 59 (1981), 32.) 31 See Zimmermann, Staatennachfolge, 790 (with further references). 32 While the matter is by no means clear, this may reflect the Court’s approach in its first interim order in the Bosnian Genocide case. In it, the Court noted that ‘the [UN] Secretary-general has treated Bosnia-Herzegovina, not as acceding, but as succeeding to the Genocide Convention, and if this be so the question of the application of Articles XI and XIII of the Convention would not arise…’ (ICJ Reports 1993, 3, para. 25, emphasis added). 26

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Article XIII 15 D. Concluding Observations 15 Article XIII regulates a fundamental matter in a rather straightforward manner. Its distinction between the entry into force of the Convention as such, and the entry into force for states subsequently consenting to be bound, is well-established. During the Convention’s history, issues relating to its entry into force have occasionally prompted debates. However, these debates have centred less on the terms of Article XIII than on matters it did not regulate: the effects of reservations and objections on the validity of declarations of consent to be bound; and issues of state succession. Both of these problems have been addressed in the Court’s jurisprudence, but have not been clarified conclusively.

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Article XIV The present Convention shall remain in effect for a period of ten years as from the date of its coming into force. It shall thereafter remain in force for successive periods of five years for such Contracting Parties as have not denounced it at least six months before the expiration of the current period. Denunciation shall be effected by a written notification addressed to the Secretary-General of the United Nations. Table of Contents: A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Drafting History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Duration in force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Withdrawing from the Convention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Other grounds entailing loss or suspension of treaty membership . . D. Concluding Observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

mn. 1 3 7 8 10 14 16

A. Introduction Article XIV addresses two issues: (i) the duration in force of the Convention; and 1 (ii) the procedure governing its denunciation by individual states. On the first point, paragraphs 1 and 2 of Article XIV distinguish between an initial period for which the Convention remains in force, and subsequent successive periods; however in essence it adopts a rather straightforward approach. Questions of denunciation (perhaps better referred to as ‘withdrawal’1) are addressed in paras 2 and 3, which clarify the procedure to be followed and determine the point at which a denunciation becomes effective. While these matters are relevant, they presuppose that states can withdraw at all from the Convention: during the debates, it was this more fundamental aspect – rather than questions of implementation that Article XIV regulates – that proved controversial. Article XIV is closely linked to Article XV, which equally addresses the Conven- 2 tion’s duration in force; pursuant to it, the Convention ceases to be in effect once the number of state parties has dropped to below sixteen. In so far as Article XIV prescribes the duration in force of the Convention, it presupposes its entry into force in line with Article XIII para. 2. B. Drafting History There is considerable continuity between the initial Secretariat Draft of what was 3 to become Article XIV and the text of the eventual provision. Nevertheless, the 1 With respect to multilateral treaties, such as the Genocide Convention, the term ‘denunciation’ can be misleading, as it may be taken to imply the termination of the treaty as such. In the context of Article XIV, it is clear that ‘denunciation’ is used to describe the withdrawal, by a given state, from the Convention which otherwise remains binding. On the termination of the Convention as a result of withdrawals see Article XV; for comment on the use of terminology see Aust, Modern Treaty Law and Practice (2nd ed.), 277.

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Article XIV 3–5 drafting of Article XIV was far from straightforward, and the question of withdrawal in particular proved controversial. 4 The initial Secretariat Draft addressed the matter in Article XIX, for which the Secretariat put forward two alternative versions.2 Draft version 1 was very similar to the text eventually adopted: it provided that the Convention remain in force for a period of (not ten, but) five years, and then for successive periods of five years for those states that had not withdrawn from it. It also prescribed the procedure for withdrawing from the Convention. Draft version 2 was silent on the Convention’s duration in force, but recognized the right of each state to withdraw from the Convention with one year’s notice. Notwithstanding their differences, both versions were similar in that they envisaged the possibility of withdrawal. In its comments, the Secretariat noted ‘in the interest of the progress of international law’, some states had wanted to exclude the possibility of denunciation altogether.3 However, for three reasons, the Secretariat disagreed.4 Firstly, in its view, a convention like the Genocide Convention required the moral support of states parties. If states were unable to withdraw from it, they would have to remain parties, but without their moral support, the Convention would become ‘practically nugatory’.5 Secondly, if a state could not free itself from the Convention, the Secretariat believed it might decide not to join the Convention in the first place. Lastly, the Secretariat referred to the contemporary view of states that a treaty without an express clause could be denounced at any moment;6 in its view, including an express clause would be the most obvious way of bringing about legal clarity. On the basis of these considerations, the Sub-Committee of the Ad Hoc Committee and the Ad Hoc Committee itself proceeded with a discussion of the two versions put forward by the Secretariat. While the Sub-Committee left the matter open,7 the Ad Hoc Committee narrowly opted for version 1, which it thought to promote greater stability, and which found its way, as Draft Article XIV, in the Ad Hoc Committee Draft.8 5 It was during the subsequent debates of the Sixth Committee that the debate about the desirability of a withdrawal clause was re-opened and the arguments referred to in the Secretariat Draft resumed. Amendments submitted by Belgium,9 the United Kingdom,10 and Uruguay11 all proposed the deletion of Draft Article XIV, which in their view had no place in a Convention designed to give effect to the universal condemnation of genocide.12 Belgium in particular argued that Article XIV’s provision of a fixed period of validity and possibility of denunciation were contrary to General Assembly Resolution 96(1) which had 2

UN Doc. E/447, 57–8. UN Doc. E/447, 57–8. 4 UN Doc. E/447, 57–8. 5 UN Doc. E/447, 57–8. 6 For many references on this controversy see McNair, Law of Treaties, 493; Feist, Ku ¨ ndigung, Ru¨cktritt und Suspendierung, 198–213. 7 UN Doc. E/AC.25/10, 7. 8 See UN Doc. E/794, 44. 9 UN Doc. A/C.6/217. 10 UN Doc. A/C.6/236. 11 UN Doc. A/C.6/209. 12 See UN Doc. A/C.6/SR.108, 479–80 (Mr. Pratt de Marı´a, Mr. Kaeckenbeeck, and Mr. Fitzmaurice). 3

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proclaimed the prevention and punishment of genocide as a ‘principle of international law that essential character of which was its permanence’.13 France, Iran and the United States argued in favour of retaining Draft Article XIV.14 According to the latter, a lack of any provision on denunciation would have represented an obstacle to ratification or accession to the Convention; France considered Draft Article XIV to give the Convention a ‘psychological element of stability’ since ‘it guaranteed automatic renewal for successive periods’ and as experience had ‘parties to a convention hesitated to denounce it when such a clause was included in the text’.15 The Soviet Union went further in proposing to allow denunciations at any time – in effect moving back to version 2 of the initial Secretariat Draft and subject to the same one-year notice period.16 As proposals for deletion did not muster sufficient support, Belgium, Uruguay 6 and the United Kingdom withdrew their amendments, so to avoid a lengthy and potentially fractious debate. Whilst the Soviet Union proposal was voted down;17 however, taking up concerns of those favouring a long-term regime, a Chinese amendment increased the initial period of validity to ten years.18 Thus amended, Article XIV was adopted by 38 votes to none (with three abstentions).19

C. Interpretation The travaux reflect the controversial character of denunciation clauses in law- 7 making treaties with a humanitarian objective. To date, no state has availed itself of the possibility envisaged in paragraphs 2 and 3; however, the very existence of a denunciation clause distinguishes the Genocide Convention from many humanitarian treaties concluded subsequently. With respect to the Convention’s duration in force, statements made during the drafting indicate that the wording of paragraph 2 is open to misunderstanding. Both aspects will be dealt with briefly. In addition, some brief remarks on the termination of membership in the Convention through means other than denunciation are called for. I. Duration in force Paras 1 and 2 regulate the duration in force of the Convention in a rather 8 complicated way. The complicated approach adopted in the two paragraphs was considered necessary to allow for a differentiated regime of denunciation. In this respect, Article XIV distinguishes between an initial period and subsequent successive periods during which the Convention remains in force. Para. 1 prescribes an initial period of ten years. Predictably, this period is calculated ‘from the date of [the Convention’s] coming into force’, which, in line with Article XI para. 2, was on 12 January 1951.20 The Convention contains no provision on withdrawal during this initial ten-year period. 13

UN Doc. A/C.6/SR.108, 480 (Mr. Kaeckenbeeck). UN Doc. A/C.6/SR.108, 480–2 (Mr. Chaumont; Mr. Abdoh; Mr. Maktos). 15 UN Doc. A/C.6/SR.108, 481 (Mr. Chaumont). 16 UN Doc. A/C.6/215/Rev. 1. 17 UN Doc. A/C.6/SR.108, 483 (14:8 votes, with 18 abstentions). 18 UN Doc. A/C.6/SR.108, 483 (31:0 votes, with 10 abstentions). 19 UN Doc. A/C.6/SR.108, 483. 20 See Article XIII, mn. 9. 14

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Article XIV 9–11 9

Crucially (although not said so expressly and although some statements during the drafting process may suggest the opposite), from the end of the initial ten-year period onwards, the Convention remains in force for an unspecified period of time. The reference, in paragraph 2, to subsequent ‘successive periods of five years’ does not mark a specific date at which it would cease to do so – or at which further action would be required for the Convention to remain in force. It merely indicates the date at which notifications of withdrawal become effective (namely at the end of the following five-year period, provided the notification was received in time). As far as the Convention itself is concerned, this however is irrelevant. In fact, the only provision pursuant to which the Convention ceases to be in force is Article XV. By contrast to that provision, Article XIV indeed ‘guarantee[s] automatic renewal for successive periods’.21

II. Withdrawing from the Convention 10 The key aspect of Article XIV, then, is the recognition and regulation of the right of states to withdraw from the Convention. As the drafting history makes clear, it is by no means obvious that treaties with a humanitarian objective should recognise such a right. Developments since 1951 suggest that the view favoured during the drafting by Belgium, Uruguay and the United Kingdom has gained ground. Many human rights treaties concluded subsequently (among them the two 1966 Covenants) in fact deliberately opt against the inclusion of a withdrawal clause. In General Comment issued in 1997, the Human Rights Committee took note of this fact, and seemed to go even further when noting that the Covenant on Civil and Political Rights, codifying core human rights, did ‘not have a temporal character typical of treaties where a right of denunciation is deemed to be admitted’.22 However, this may be overstating matters: the Genocide Convention is by no means the only treaty of a humanitarian character to contain a denunciation clause,23 and even if it were, Article XIV would of course remain valid. While it would be undesirable for states to withdraw from the Convention,24 the text of Article XIV para. 3, clarifies that they are entitled to do so. 11 Once a denunciation has taken effect (a matter to be addressed below25), the withdrawing party is ‘release[d] … from any obligation further to perform the treaty’, while ‘any right, obligation or legal situation … created through the execution of the treaty’ remains unaffected.26 By the same token, it is clear that the withdrawal only affects the party’s position under the Genocide Convention, but has no impact on parallel rights and obligations arising under general interna-

21

UN Doc. A/C.6/SR.108, 481 (Mr. Chaumont). Human Rights Committee, General Comment 26/61 (1997), para. 3. 23 See e. g. Article 21 CERD; Article 16 of the Anti-Apartheid Convention; Article 31 Convention against Torture. 24 See e. g. Del Mar, in: Gaeta, Genocide Convention, 506: ‘One has a natural reflex to respond with some bewilderment to the possibility that a state party could withdraw from a treaty as important as the Genocide Convention.’ 25 See infra, mn. 13. 26 See Article 70 VCLT. Some denunciation clauses state so expressly (see e. g. Article 31 para. 2 of the Convention against Torture), but the matter is clear anyway. 22

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Article XIV

tional law.27 Notably, insofar as the Convention reflects customary international law, a state remains bound by the substantive obligations relating to genocide. Article XIV para. 3 provides some details on the procedure governing withdrawal. 12 It requires a written notification to this effect; this is to be directed to the UN Secretary General as the treaty depositary. While this may seem obvious, paragraph 3 is important also for what it does not say. In particular, the right to withdraw is not restricted to special circumstances (such as the existence of ‘extraordinary events … jeopardis[ing] the supreme interests of [a] country’28), but can be exercised freely. Moreover, unlike some more recent treaties, Article XIV para. 3 does not require a party that to provide information or about the reasons justifying the withdrawal.29 No doubt, a state contemplating withdrawal from the Genocide Convention will be mindful of the political costs of such a step. However, the legal obstacles are limited. Article XIV para. 2 prescribes the date on which a withdrawal becomes effective 13 (and from which on the withdrawing party is released from its obligations under the Convention). Unlike many other treaties (and unlike the alternative Secretariat version favoured by the Soviet Union had envisaged), the effect does not depend on the lapse of a particular period of time following the notification. Instead, paragraph 2 provides that the withdrawal will only become effective at the end of the current five-year period for which the Convention remains in force. By way of illustration, a state denouncing the Convention in early 2014 would remain bound until 11 January 2018.

III. Other grounds entailing loss or suspension of treaty membership Although Article XIV is the only provision addressing the matter, other grounds 14 can entail the termination, or suspension, of a state’s participation in the Convention. In principle, the general rules governing the suspension or termination of treaties remain applicable, which for example permit the suspension or termination of a treaty in response to fundamentally changed circumstances, impossibility of performance, amongst others. In practice, however, these general rules lose their relevance as a state seeking to avoid obligations under the Genocide Convention can simply withdraw under Article XIV. In addition, it is worth noting that the number of parties to the Convention may be 15 affected not only by a state’s decision to withdraw, but also, and more fundamentally, by changes to the legal personality of a state party. Notably, the number of state parties to the Convention will decrease if a state ceases to exist (unless one or more successor states succeed to its treaty membership) or if two states merge to form one. While no state has denounced it, these more fundamental developments have in fact affected participation in the Convention: hence the Republic of (South) Viet-Nam ceased to be a party when it became part of the Socialist Republic of Vietnam in 1976, only for the latter to accede in 1981; by the same token, the German Democratic Republic’s ceased to be a party upon German unification.30 27 Occasionally, denunciation clauses say so expressly: see e. g. Article 14 para. 3 of the 2004 Convention on Jurisdictional Immunities of States and their Property. 28 See Article X para. 1 of the Nuclear Non-Proliferation Treaty. 29 Contrast e. g. Article 20 para. 2 of the Ottawa Convention (‘Such instrument of withdrawal shall include a full explanation of the reasons motivating this withdrawal.’) 30 For details see the information on ‘Germany’ (note 2) in Multilateral Treaties Deposited with the Secretary-General: Historical Information: http://treaties.un.org/Pages/HistoricalInfo.aspx?#’Germany’.

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Article XIV 16 D. Concluding Observations 16 Article XIV has been of limited practical importance, and in retrospect, it seems a curious provision. The Convention’s duration in force might have been regulated in much more straightforward language. Whether the recognition of a right of denunciation was politically wise may be open to doubt. However, as the political cost of a denunciation would be enormous, no state has ever availed itself of this right. Even if states were to do so, they would of course remain bound by the customary rules against genocide, which, as a matter of substantive law, are similar, if not identical, to the Convention and which simply cannot be denounced. Denunciation would thus mainly affect treaty-specific modes of enforcement, notably ICJ proceedings pursuant to Article IX; however in this respect, states unwilling to recognize the Court’s jurisdiction have preferred to safeguard their position by submitting reservations. In the light of these considerations, Article XIV is unlikely to assume a greater role in the future.

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Article XV If, as a result of denunciations, the number of Parties to the present Convention should become less than sixteen, the Convention shall cease to be in force as from the date on which the last of these denunciations shall become effective. Table of Contents: A. B. C. D.

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Concluding observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

mn. 1 3 5 10

A. Introduction Article XV envisages the termination of the Convention (or ‘abrogation’1) if the 1 number of state parties falls below the number of sixteen. It is based on the understanding that a ‘world order treaty’ like the Convention is only meaningful if it is binding on a relevant number of states. While the Genocide Convention is not the only treaty that ceases to be in effect once the number of state parties falls below a certain number,2 such provisions – containing a particular type of resolutory condition3 – are exceptional. Article XV is the only provision of the Convention that expressly envisages the 2 termination of the Convention as such. On that basis, it needs to be distinguished from Articles XIV and XVI. Article XVI envisages the revision of the Convention; while such a revision exceptionally can result in the termination of the Convention,4 this is by no means the only possible outcome. Article XIV addresses the Convention’s duration in force for specific states. It is closely linked to Article XV in that the termination of the Convention results from states exercising their right of withdrawal, and takes effect at the same time as the sixteenth-last denunciation.5 As to date, no state has made use of that right, Article XV has not become practically relevant. B. Drafting history A provision along the lines of Article XV was included in all principal drafts of 3 the Convention. The Secretariat memorandum considered it ‘logical’ that since the Convention would require a particular number of state parties to enter into force (which the Secretariat Draft had left open), it should lapse if states withdrew from it and the number required for the entry into force was no longer met, and it so provided in Article XX of the Secretariat Draft.6 The ‘logic’ behind this was not 1

The term ‘abrogation’ was traditionally used to describe the official revocation of a treaty, and is used in the unofficial title headings to Article XV. In line with the VCLT terminology, the subsequent sections use the neutral term ‘termination (of the Convention)’ instead. 2 See e. g. Article 8 para. 2 of the Convention on the Political Rights of Women (1952) and Article XIV of the Convention for the Establishment of a European Organization for Nuclear Research (1954). 3 Capotorti, RdC 134 (1971), 475–7. 4 See Article XVI, mn. 12. 5 But see infra, mn. 8, for other (even more exceptional) possibilities. 6 UN Doc. E/447, 59.

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Article XV 3–6 questioned openly,7 not least because the provision attracted very little debate. However, the drafters quickly de-coupled the Convention’s entry into force from its termination by putting forward a different minimum requirement – twenty for the entry into force, fifteen (or later changed to ‘less than sixteen’) for termination.8 Both figures were suggested by the United States in their comments on the Secretariat Draft. And while no explanation was given for the latter, it was accepted without debate by the Ad Hoc Committee and found its way, as Article XVI, into the Ad Hoc Committee Draft.9 4 The only challenge to Article XV came in the debates of the Sixth Committee. Amendments by Belgium, Uruguay and the United Kingdom sought to exclude the possibility of withdrawal from the Convention (eventually recognized in Article XIV); almost by necessity, this was to entail the deletion of Article XV as well.10 However, as the Sixth Committee decided to accept the possibility of a withdrawal, the three states withdrew their amendments, and Article XV was accepted.

C. Interpretation 5 While they almost inevitably regulate their entry into force, treaties that are precluded for an unlimited period of time only rarely contain resolutory conditions that would lead to their termination as a treaty. Article XV therefore is an unusual clause. Its consequence – the termination of one of the major multilateral treaties of contemporary international law – seems difficult to envisage in practice, but the drafters thought it preferable to address that eventuality and of course were free to do so.11 In terms of the general law of treaties, clauses like Article XV are exceptions to the general rule (codified in Article 55 VCLT), pursuant to which, ‘[u]nless the treaty otherwise provides, a multilateral treaty does not terminate by reason only of the fact that the number of the parties falls below the number necessary for its entry into force.’12 6 As the number of state parties to the Genocide Convention has remained well above 100 for decades, and as no state has withdrawn from it, Article XV is unlikely ever to become practically relevant. It is largely self-explanatory in that prescribes a specific legal consequence that is triggered by a specific legal act. The consequence 7 It should be noted, however, that Haiti – considering the Convention to be ‘essential to the normal development of the world and the defence of mankind’ – proposed that should the Convention ever cease to be in force, the Secretary-General should propose an ‘Ersatz’ text. (see UN Doc. E/623). This was not pursued. 8 See UN Doc. E/623 (draft article XVI). 9 UN Doc. E/794, 45. 10 See their respective amendments in UN Docs A/C.6/209, 217 and 236. While all of these proposed the deletion of Article XV, they treated this as a side-issue to the real debate about the right to withdraw from the Convention. The same applies to the debate in the Sixth Committee reproduced in UN Doc. A/C.6/SR.108. 11 See Article 54 VCLT: ‘[t]he termination of a treaty … may take place … in conformity with the provisions of the treaty’. This has rightly been described as a ‘self-evident rule’ (Sinclair, Vienna Convention, 182). 12 In its commentary on what was to become Article 55 VCLT, the ILC noted: ‘While there may be a certain logic in assuming that the figure [of States parties] required for the entry into force is essential for its continuing existence, in fact, the conditions for the entry into force of a treaty are not the same as for the treaty’s termination’ (YbILC 1966 II, 250). This presents an interesting contrast to the ‘logic’ asserted by the Secretariat in order to justify the inclusion of Draft Article XX in the Secretariat Draft (see supra, mn. 3).

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envisaged is the termination of the Convention as a whole, and for all states parties. More specifically, from the date the Convention ‘cease[s] to be in force’, the parties are released from the duty ‘further to perform the treaty’.13 As it is ‘the Convention’ that terminates, this applies in between all state parties, including the fifteen remaining state parties.14 As the use of the term ‘cease’ clarifies, the termination of the Convention 7 produces effects ex nunc, but does not affect the legal situation prior to the termination. This is in line with the general understanding of termination, which is seen as having prospective effects only, but ‘does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination’.15 By the same token, even after the termination of the treaty, states remain bound by rules of customary international law against genocide. The Convention terminates if the number of state parties drops below sixteen. 8 The legal act in question (the resolutory condition) is the withdrawal of the sixteenth-last state party to the Convention. The second clause of Article XV defines the ‘critical date’ with some precision by referring to the ‘date on which the last of these denunciations shall become effective’. This refers back to the rather complicated provision on the temporal effect of withdrawals pursuant to Article XIV para. 2, which permits states to withdraw from the Convention at the end of successive five-year periods, and only if they had notified their decision at least six months prior to the end of that period.16 Article XV deals only with the decrease in the number of state parties due to 9 denunciations. However, the number of state parties could also drop due to other circumstances, notably through a state party’s loss of legal personality.17 The Convention does not address that eventuality. Since Article XV intends to set a minimum number of members, the better view would be to apply it to all instances in which the number of state parties would drop below sixteen, irrespective of the modality by which the loss of membership is entailed. Given the actual number of state parties, this is however a mere theoretical possibility.

D. Concluding observations Article XV, together with Article XIV, shows that at the time of drafting, the 10 Genocide Convention was considered, at least in some respects, to be an ordinary treaty from which states could withdraw from and which could even automatically cease to be binding if it proved unsuccessful. These provisions stand at odds with the now-dominant understanding of the Convention as a codification of international public policy. In the light of that now-dominant approach, Article XV has become practically irrelevant. 13

See Article 70 para. 1 lit. (a) VCLT. Del Mar, in: Gaeta, Genocide Convention, 506. 15 Article 70 para. 1 lit. (b) VCLT. 16 For details see Article XIV, mn. 13. 17 See Article XIV, mn. 14 for brief comment. 14

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Article XVI A request for the revision of the present Convention may be made at any time by any Contracting Party by means of a notification in writing addressed to the Secretary-General. The General Assembly shall decide upon the steps, if any, to be taken in respect of such request. Table of Contents: A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. The content of Article XVI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Options for dealing with revision requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Effects of revisions on the Convention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D. Concluding observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

mn. 1 3 5 6 8 12 13

A. Introduction More than six decades have passed since the drafting of the Convention. Given 1 the considerable changes to the political and normative environment in which the Convention is applied, the drafters were surely right to anticipate the need for changes to the treaty text. Article XVI – a regular final clause found in many multilateral treaties – is the result of that anticipation. It allows for the ‘revision’ of the Convention, or in other words for the formal amendment of the text of the treaty.1 However, it is of rather limited reach and notably does not provide for an effective amendment procedure. In fact, it does little more than mentioning the possibility of revising the Convention (which would exist anyway, under general law of treaties2) without laying down procedural rules that should govern the process.3 As will be shown below, in practice state parties to the Convention have handled amendments of a technical character very flexibly; however, there has been no serious attempt to adapt the substance of the Convention to a changing normative environment. In this respect, Article XVI shares the fate of revision clauses of many other humanitarian treaties, which have proved too cumbersome to be used. In prescribing that requests for revision are to be addressed to him, Article XVI 2 formalises one aspect of the Secretary-General’s depositary functions, which is taken up in Article XVII lit. (f) of the Convention. As will be shown below, under certain (exceptional) circumstances, a revision in the sense of Article XVI may result in the termination of the Convention, in that it will entail the legal effect envisaged (for other grounds) in Article XV. In entrusting the revision process to the General Assembly, Article XVI confirms the UN’s role as the sponsor of the Convention. 1

See infra, mn. 5, for comments on the use of terminology. See Article 39 VCLT: ‘A treaty may be amended by agreement between the parties.’ 3 In the terminology of Klabbers, it is ‘a very general provision merely postponing any decision’ (Klabbers, Amendment and Revision, in: MPEPIL, para. 2). 2

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Article XVI 3–5 B. Drafting history 3 The Secretariat Draft, in Article XXI, envisaged the possibility of a revision of the Convention in terms that were very similar to the eventual text of Article XVI.4 However, the adoption of the provision was not without problems. In their comments on the Secretariat Draft, the United States proposed to insert a threshold requirement: for revision requests to be passed on, they would need the support of one fourth of state parties.5 A second question concerned the UN organ competent to decide upon ‘the steps … to be taken’: whereas the Secretariat Draft had entrusted this authority to ECOSOC, the United States preferred the General Assembly.6 The Sub-Committee dealing with final clauses noted the differences, but took no decision.7 The Ad Hoc Committee adopted the United States’ proposal as Article XVI of its Draft, arguing that requests for revision would carry greater weight if supported by a relevant number of states.8 4 The debate was then re-opened in the Sixth Committee. Belgium proposed the deletion of Article XVI, but withdrew this amendment as by that stage, it had become clear that the International Law Commission would discuss questions relating to an international criminal tribunal competent to address matters of genocide; therefore ‘it would be advisable to provide for the possibility of revising the convention when the Commission had submitted its findings’.9 The Soviet Union proposed in effect to move back to the initial version of the provision, which had recognized the right of each party to request a revision and referred such requests to ECOSOC.10 While representatives felt the General Assembly, having elaborated the text, was in a better position to deal with requests, there was considerable sympathy for recognizing the right of each party to propose a revision – not the least because under the Charter, each UN member could bring all matters before the General Assembly anyway (as was noted frequently, although the two issues might well have been de-coupled).11 In the end, a French amendment to the Soviet proposal paved the way for a compromise, which referred to ‘any Contracting Party’ and the General Assembly.12 C. Interpretation 5 It is clear from the foregoing that Article XVI hints at, rather than comprehensively regulates, the question of treaty revision. Only some of the stages of the process of revision are addressed in the provision, and the more relevant aspects of the procedure governing revision requests are a matter for the General Assembly’s discretion and/or the general treaty law governing treaty amendments. This is reflected in the subsequent comments. 4

UN Doc. E/447, 60. UN Doc. E/623 (draft article XVII). 6 Contrast UN Doc. E/447, 60; and draft article XVII, proposed by the United States (UN Doc. E/623). 7 UN Doc. E/AC.25/10, 9. 8 UN Doc. E/794, 46. 9 UN Doc. A/C.6/217 and A/C.6/SR.108, 483 (Mr. Kaeckenbeeck). 10 UN Doc. A/C.6/215 Rev. 1. 11 See the debate in UN Doc. A/C.6/SR.108. 12 UN Doc. A/C.6/SR.108, 484–5 (Mr. Chaumont). 5

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I. The content of Article XVI While leaving crucial aspects open, Article XVI regulates the early stages of the 6 revision process in some detail. As a preliminary point, it is worth noting that it sets out one ‘revision procedure’ for all types of formal amendments of the text of the Convention, whether major or minor.13 This may not be in line with general parlance, which reserves the term ‘revision’ for major changes to treaties.14 However, it is in line with the general law of treaties: after debates, the ILC decided not to distinguish between major and minor amendments, but to put forward one general regime for all formal changes – which it referred to, in more neutral terms, as ‘amendments’.15 As regards the initiation of the revision process, Article XVI is quite specific. 7 Three points can be made: First, Article XVI clarifies that a request for revision can be made by ‘any Contracting Party’. There is no need for prior consultations about the merits of the proposed amendment (even though this may be advisable), and requests do not need to find the support of states other than the requesting state. By contrast, requests can only be made by states parties. Non-parties are excluded (even if they are UN members involved in the eventual debates of the General Assembly) as are states that have signed, but not ratified the Convention. Second, Article XVI clarifies the form and addressee of the request: requests are to be made in writing and notified to the Secretary-General as the treaty depositary. Third, it follows from Article XVII lit. (f) that the Secretary-General is to notify UN members and other states parties of any request; this enables the General Assembly to ‘decide upon the steps, if any, to be taken in respect of [a] request’ in line with Article XVI para. 2. It is at this stage of the process that Article XVI ceases to provide normative guidance on how to deal with revisions requests and instead leaves everything to the discretion of the General Assembly. II. Options for dealing with revision requests If a request for revision is brought to its attention, the General Assembly has 8 various options. It can decide not to take any steps (for instance because the proposal represents a minority view). Alternatively, it can propose to enter into a discussion of the merits of the request. The format of such discussions of course depends on the character of the request for revision:16 a comprehensive overhaul of the Convention 13 Del Mar, in: Gaeta, Genocide Convention, 504. As the ILC observed in the commentary to what was to become Article 39, amendments/revisions would denote ‘a formal amendment of a treaty intended to alter its provisions with respect to all the parties’ (YbILC 1966, vol. II, 232). 14 See Sands, in: Corten/Klein, VCLTs Commentary, 968; as well as Articles 108 and 109 of the UN Charter. 15 See Articles 39–40 VCLT; and further Final Clauses Handbook, 96; and para. 3 of the ILC’s commentary on what was to become Article 39 VCLT (YbILC 1966, vol. II, 232): ‘Some treaties use the term ‘amendment’ in relation to individual provisions of the treaty and the term ‘revision’ for a general review of the whole treaty. If this phraseology has a certain convenience, it is not one which is found uniformly in state practice, and there does not appear to be any difference in the legal process. The Commission therefore considered it sufficient in the present articles to speak of ‘amendment’ as being a term which covers both the amendment of particular provisions and a general review of the whole treaty’ (footnotes omitted). 16 See Del Mar, in: Gaeta, Genocide Convention, 505.

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Article XVI 8–10 would presumably require a major conference of state parties organised under the UN auspices; smaller changes might be dealt with in a more discrete manner. Under the General Assembly’s Rules of Procedure, such as decision could be taken by simple majority vote.17 The real challenge however is not one of logistics, nor indeed one of reaching a majority within the General Assembly, but concerns the requirements for a revision eventually to take effect. In the absence of a specific amendment or revision procedure in the Convention, the general rules of treaty law apply. As noted above, these render amendments extremely difficult. The basic premise, recognised in Article 39 VCLT, is that amendments require an ‘agreement between the parties’. While this agreement may be expressed informally, it is all parties that need to agree.18 9 This general rule applies to all forms of amendments, including those that may seem of limited importance, unless they merely correct an error (for which the Vienna Convention sets out a simplified ‘correction procedure’19). The only instance of treaty practice under Article XVI suggests that the line between corrections and amendments may occasionally be blurred. As noted in the commentary to Article X,20 due to the rush preceding the adoption of the Convention, the initial authentic Chinese text had contained linguistic errors. Upon ratifying the Convention, the Chinese government prepared a new text which it sent to the Secretary-General alongside its instrument of ratification, requesting him to revise the original authentic Chinese text. Quite rightly, the Secretary-General considered himself not authorized to do so and instead referred the matter to the General Assembly, drawing attention to Article XVI.21 After debate, and adopting a pragmatic approach, the General Assembly requested the Secretary-General to circulate the ‘corrected’ Chinese text inviting acceptance and rejection.22 As no state took issue with this approach, the corrected version of the Chinese text has since replaced the (original) ‘defective text ab initio’23 – all the while retaining its status as an authentic text. This may be seen as either as a creative way of reaching an ‘agreement between the parties’ or an application of the simplified procedure for corrections (albeit in a modified form).24 10 Clearly, however, the unusual precedent concerning the Chinese text offers no guidance for how to deal with revision requests affecting the substance of Convention articles. Given the requirement of unanimity, requests that would involve 17 See Article 18 UN Charter and Rule 85 of the General Assembly’s Rules of Procedure. A different majority requirement would apply if the decision on ‘steps to be taken’ would be qualified as an ‘important question’ requiring a two-thirds majority. In light of Rule 83, this however seems unlikely. 18 Del Mar, in: Gaeta, Genocide Convention, 505; Schabas, Genocide Convention (2nd ed.), 613. Writing in 1961, McNair observed that the unanimity principle was ‘one of the weakest spots on the now existing system’ (Law of Treaties, 534). A separate rule applies to inter-se agreements modifying the text of the treaty for some of its parties: see infra, mn. 12. 19 See Article 79 VCLT. 20 Article X, mn. 10. See further Liang, AJIL 47 (1953), 263. Annex 1 reproduces the corrected text. 21 See UN Doc. A/1880 and A/2221. The Secretary-General’s memorandum is reproduced in YbILC 1963, vol. II, at 32–5. 22 GA Res 691 (VII) of 21 December 1952. 23 Article 70 para. 4 VCLT. 24 Contrast e. g. Kolb, in: Corten/Klein, VCLTs Commentary, 1777 (mentioning the episode as an instance of treaty correction) and Robinson, Genocide Convention, 117 (considering it in relation to Article XVI).

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Article XVI

politically sensitive or contentious matters are highly unlikely to succeed – and it is thus no surprise that despite the weaknesses of the Convention, no official request for a substantive amendment has ever been submitted. In this, of course, the Genocide Convention is not exceptional. Because of the strictures of the general rules governing amendments, universal multilateral treaties that do not set out an effective, treaty-specific procedure are almost never successfully amended.25 Experience with other treaties of a humanitarian character suggests that, if anything, ‘core agreements’ are supplemented by optional or additional protocols: independent treaties in their own right typically expanding the scope of protection or adding new enforcement mechanisms for those states that decide to accept them as binding.26 It is worth underlining that an optional protocol to the Genocide Convention could have addressed many of its weaknesses, notably by adding a treaty-specific implementation mechanism. However, state parties have not submitted requests pointing in that direction and have ignored recommendations made by experts.27 To the extent that the international regime against genocide has been supplemented by new rules, these have developed outside the framework of the Genocide Convention, notably in the framework of the emerging international criminal law shaped and refined through treaty-making, case-law and meetings of parties. By contrast, the adaptation of the Convention to changing realities has been a 11 rather haphazard process.28 In the absence of express changes, or additions, to the text of the treaty, it has taken the form of interpretative change – notably prompted by decisions of judicial bodies (including those created outside the Convention’s framework) that have come to be accepted by the international community.29 At times, such interpretative change has had considerable influence: suffice it to note that the interpretation of the Convention’s text has resulted in the recognition of a duty not to commit genocide30 and has ‘activated’ the hitherto dormant duty to prevent genocide31 and clarified the territorial scope of obligations imposed on the Convention.32 However, this adaptation through interpretation has not been part of a systematic process. In this respect, the absence of relevant practice under Article XVI has indirectly affected the application of the Convention over time.

III. Effects of revisions on the Convention If state parties ever were to proceed with a substantive revision pursuant to 12 Article XVI, such a revision – depending on the type of changes agreed to – could have very different consequences on the Genocide Convention. Three scenarios 25 As regards human rights treaties, the major overhaul of the European Convention on Human Rights by means of successive Protocols would seem to present the most prominent exception. 26 As regards the major UN human rights treaties, mention can e. g. be made of the optional protocols to the CCPR, the CESCR, the Convention against Torture and the Convention on the Rights of the Child; in addition, there are now three additional protocols to the 1949 Geneva Conventions. 27 Notably the reform proposals contained in the Ruhashyankiko and Whitaker Reports. 28 On the underlying notions of treaty interpretation enabling this process to take place see Introduction, mns 29–38. 29 For succinct comments on this aspect see Klabbers, Amendment and Revision, in: MPEPIL, paras 13–6. 30 Article I, mn. 51–81. 31 Article I, mns 31–50. 32 Article XII, mns 10–6.

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Article XVI 12, 13 (each of them highly unlikely, for the reasons mentioned above) can be envisaged: (i) Treaty amendments agreed ‘between [all] the parties’ would change the rights and obligations imposed by the treaty for all states bound by it;33 conversely, an ‘amending agreement does not bind any state already a party to the treaty which does not become a party to the amending agreement’.34 In exceptional circumstances, a completely overhauled new (revised) Genocide Convention could replace the existing one between all parties; in this case, the revised treaty would presumably clarify that the replaced text would cease to be binding on the parties.35 (ii) If a revision resulted in an optional protocol supplementing the Convention (e. g. adding a new enforcement mechanism), this would not as such affect the core agreement; instead the optional protocol as an independent treaty in its own right would apply alongside the Convention between the states that agreed to become bound.36 (iii) Finally, in principle it would be possible for some of the state parties to modify the Convention ‘as between themselves alone’;37 given the public interest in the Convention’s regime against genocide, such inter-se modifications would however only be permissible within strict limits.38

D. Concluding observations 13 By agreeing on Article XVI, the drafters of the Convention recognised that the treaty they were about to finalise might require amendment or adaptation over time. This was an important insight but it was not followed through: Article XVI limits itself to mentioning the possibility of revision, but fails to set out an effective amendment mechanism, was bound to remain under-used. Treaty practice since 1951 confirms this: while the world in which it is to be applied has changed radically, the Convention, textually, has remained the same. A ‘living instrument’, the Convention has been adapted by way of re-interpretation; yet the interpretative changes are not reflected in its text. In this respect, the Genocide Convention shares the fate of many multilateral treaties of a humanitarian character (even though many of these have been supplemented by optional protocols or formed through the regular practice of treaty bodies). The cautious approach to treaty revision that informs these agreements ensures the stability and continuity of commitments, which are designed to be ‘eternal’. While these values have remained important, subsequent generations of treaty drafters have come to appreciate the need for adjustment and adaptation more fully, and have sought to facilitate the achievement of these goals by providing for mechanisms such as regular meetings/conferences of parties or review conferences. 33

See Article 39 VCLT and further Klabbers, Amendment and Revision, in MPEPIL, paras 6–7. Article 40 para. 4 VCLT. 35 See Article 59 VCLT. 36 Del Mar, in Gaeta, Genocide Convention, 505. Article 30 para. 4 VCLT applies in this case. 37 See Article 41 VCLT. 38 For details see Sinclair, Vienna Convention, 108–9. 34

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Article XVII The Secretary-General of the United Nations shall notify all Members of the United Nations and the non-member States contemplated in article XI of the following: (a) Signatures, ratifications and accessions received in accordance with article XI; (b) Notifications received in accordance with article XII; (c) The date upon which the present Convention comes into force in accordance with article XIII; (d) Denunciations received in accordance with article XIV; (e) The abrogation of the Convention in accordance with article XV; (f) Notifications received in accordance with article XVI. Table of Contents: A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. General considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Notification of states’ expressions to become bound – lit. (a) . . . . . . . . III. Other depositary notifications – lit. (b)–(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D. Concluding Observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

mn. 1 3 4 4 8 12 17

A. Introduction Depositaries play ‘an understated yet highly significant role’; they are the 1 ‘administrative hub’ of a treaty.1 Article XVII, together with Articles XVIII and XIX, defines that role with respect to the Genocide Convention by spelling out, in a non-exhaustive manner, important functions to be carried out by the UN SecretaryGeneral. The provision is similar to depositary clauses found in many other multilateral treaties. Having been agreed in the early days of the UN era, it has to be read in line with subsequent general provisions, which reflect the gradual standardisation of the depositary’s role, notably the residual provisions of Articles 76 to 80 VCLT now considered customary.2 These rules in turn have been influenced, to a considerable degree, by treaty action relating to the Genocide Convention, which has thus shaped the general regime as much at it is shaped by it. Article XVII is expressly linked to Articles XI to XVI of the Convention, as the 2 actions required by the depositary pertain to the subject-matter of these provisions (which are referred to in brackets in lit. (a)–(f)). It is closely related to Articles XVIII and XIX, which spell out further depositary functions. B. Drafting history During the drafting process, Article XVII gave rise to very little discussion. 3 From the beginning, it was accepted that the UN Secretary-General would be the depositary of the Convention and that this function entailed certain duties to inform states of relevant developments. Article XXII of the Secretariat Draft gave 1 2

Caddell, Depositary, in: MPEPIL, para. 1. Aust, Modern Treaty Law and Practice (2nd ed.), 333.

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effect to this,3 as did Article XVII of the Ad Hoc Committee Draft.4 The Secretariat explained that notifications were to be sent to ‘the States interested, that is to say the States parties to the Convention or likely to become parties to the Convention’ (which was taken to comprise UN members and states invited to become parties).5 In their comments, the United States proposed certain minor clarifications to the Secretariat’s text, which were accepted.6 The Sixth Committee eventually decided to list the various acts and effects of which states were to be notified in separate literae, so to provide for greater clarity. Once it had been decided to insert into the Convention a territorial clause (Article XII),7 this had to be reflected in Article XVII as well and led to the insertion of lit. (b). Interestingly, drafters did not feel the need to debate the more fundamental question of how the depositary should understand his role, and the problem of reservations – which soon after the adoption of the Convention was to give rise to real problems – was not mentioned.

C. Interpretation I. General considerations 4 The depositary’s task is ‘little appreciated’, yet ‘exacting’ and ‘vital to the effective functioning of any multilateral treaty’.8 Practice relating to the Genocide Convention brings this out very clearly. The ‘trials’9 faced by the Secretary-General as depositary of this particular treaty notably include early debates about the validity of ratifications to which the ratifying state had attached a reservation (which eventually led to the ICJ’s 1951 advisory opinion that was to modify the law of reservations10) and uncertainties besetting the status of the Federal Republic of Yugoslavia in the 1990 s (which was to complicate a number of contentious ICJ proceedings11). More generally, treaty practice under the Convention reflects the evolution of the depositary role, which has seen a ‘quantitative increase in the functions accorded to depositaries of treaties’ just as the ‘progressive limitation of their mission’ to largely administrative matters.12 5 As to its normative content, Article XVII designates (if only indirectly rather than expressly) the UN Secretary-General as the treaty depositary and also spells out a number of the important depositary functions. To list the Secretary-General’s tasks expressly seemed preferable to the drafters, as there had yet to emerge a standard code of depositary functions.13 As is clear from the travaux, the Secretary-General 3

UN Doc. E/447, 61. UN Doc. E/794, 47. 5 UN Doc. E/447, 61. 6 See UN Doc. E/794, 47. 7 See Article XII, mns 3–4. 8 Aust, Modern Treaty Law and Practice (2nd ed.), 324. 9 Ouguergouz/Villalpando/Morgan-Foster, in: Corten/Klein, VCLTs Commentary, 1720. 10 ICJ Reports 1951, 15. See Article XIII, mn. 9; and Reservations, mns 4–6, for comment on the background. 11 See Article IX, mns 19–22, for further details. 12 Ouguergouz/Villalpando/Morgan-Foster, in: Corten/Klein, VCLTs Commentary, 1718. For further comment on this development see notably Rosenne, AJIL 61 (1967), 923 and Rosenne, AJIL 64 (1970), 828. 13 By contrast, many treaties concluded since the 1970s merely designate a depositary, which then is required to perform the depositary functions that have since become standardised; this in fact is 4

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was the obvious choice as treaty depositary. In designating him, the drafters – just as in many other provisions – emphasised the link between the Convention and its sponsoring institution, the UN. They also followed an established pattern, as even by 1948, the Secretary-General had come to be seen as the most appropriate depositary for treaties adopted within the UN framework – a practice that has been consolidated since.14 While Article XVII mentions the Secretary-General as the ‘chief administrative officer’15 of the UN, in practice, the depositary functions are carried out by the Treaty Section within the Secretariat’s Office of Legal Affairs.16 As depositary, the Secretary-General under Article XVII is required to notify 6 states of a broad range of legal acts and effects relating to the Convention.17 In so doing, it imposes upon the Secretary-General proper obligations under international law, which are required to be performed impartially18 and which, incidentally, became binding even before the Convention’s entry into force.19 The obligations are owed not only to actual state parties, but to all states that are entitled to become parties to the Convention, namely UN members and states invited to participate pursuant to Article XI. In practice, notifications take the form of circular notes sent by the Office of Legal Affairs, originally in the form of letters signed by the UN Legal Counsel, now (because of the increased depositary workload) as notes verbales initialled by the chief of the Treaty Section.20 In lit. (a)-(f), Article XVII lists the specific functions of the depositary. The list 7 is non-exhaustive.21 It deviates from the (now common) Vienna Convention approach in that it separately lists types of notifications that in Article 77 VCLT are all comprised in the general duty to inform states of ‘acts, notifications and communications relating to the treaty’.22 Moreover, Article XVII differs from the encouraged by the UN Treaty Section: see Handbook of Final Clauses, at 9: ‘Since the depositary functions are well established and codified in article 77 of the Vienna Convention, 1969, it is adequate simply to designate a depositary. It would be understood that the duties would be performed in accordance with treaty law and established practice.’ 14 The UN Secretary-General acts as depositary for more than 500 multilateral treaties, see Final Clauses Handbook, 8; Caddell, Depositary, in: MPEPIL, para. 12. 15 See Article 76 para. 1 VCLT. 16 Aust, Modern Treaty Law and Practice (2nd ed.), 328. 17 The depositary functions need to be distinguished from other functions that the SecretaryGeneral may perform under the Genocide Convention, e. g. as part of the UN’s activities aimed at preventing and punishing genocide, see Article VIII, mns 52–5. 18 Caflisch, in: Corten/Klein, VCLTs Commentary, 1712; and see Article 76 para. 2 VCLT: ‘The functions of the depositary of a treaty are international in character and the depositary is under an obligation to act impartially in their performance.’ Article XVII does not specify how differences relating to the performance of these obligations should be handled: see on this Article 77 para. 2 VCLT. 19 See Article XIII, mn. 10; and see Articles 77 para. 2 and 24 para. 4 VCLT. 20 See Summary of Practice, para. 314, for details. For the same reason, circulars have become increasingly succinct over time. As of 2010, they are no longer distributed in paper form (see LA41TR/221/Depositary Notifications/2010). Depositary notifications are available online at http:// treaties.un.org/Pages/CNs.aspx; those relating to the Genocide Convention can be traced by using the Convention’s treaty reference (‘IV-1’). In addition to depositary notifications, the Secretary-General also occasionally sends out other communications for information purposes, e. g. general declarations of succession. To bring out the difference, these do not bear the symbol ‘C.N.TREATIES’ (see Summary of Practice, paras 313–5). 21 For examples of additional depositary notification not mentioned in Article XVII see infra, mn. 8. 22 Article 77 para. 1 lit. (e) VCLT.

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Article XVII

7–10

now-standard formulation in that it merely mentions the depositary’s duty to notify states, whereas Article 77 VCLT expressly requires depositaries to receive signatures to the treaty, as well as instruments, notifications and communications relating to it.23 This aspect of the depositary role can be taken to be implied in Article XVII.

II. Notification of states’ expressions to become bound – lit. (a) Of the various notification requirements listed in Article XVII, lit. (a) is the most relevant. Reflecting the different modalities enumerated in Article XI, it requires the depositary to notify states whenever another state has expressed its consent to become bound by the Convention. Although the Convention (like many other multilateral treaties) is silent on the matter, lit. (a) has been interpreted, without much debate, to cover declarations of succession as well; these are equally communicated by way of circular note.24 Developments in the legal regime governing reservations to treaties necessitated a further extension of Article XVII lit. (a): once international law had come to recognize, as a matter of principle, the possibility of reservations against provisions of the Genocide Convention,25 it was clear that the depositary would notify other states of these (and of interpretative declarations) as well,26 just as much as he would circulate objections by states protesting against another state’s reservation.27 The same applies to declarations withdrawing reservations and objections.28 9 In practice, states learn about relevant treaty actions mainly through depositary notifications under Article XVII lit. (a). However, the validity of the legal acts in question does not depend on the notification.29 The matter is addressed in Article 78 VCLT, which expresses a general principle in providing that a state’s notification or communication ‘shall be considered as having been made … upon its receipt by … the depositary’.30 10 Article XVII is silent on whether, before notifying the other states, the depositary should assess the validity of signatures, ratifications and accessions or any of the other statements covered by lit. (a). This question goes to the heart of the depositary role, and the evolving approach to the matter reflects the ‘progressive limitation of 8

23

Article 77 para. 1 lit. (c) VCLT. Summary of Practice, paras 301 and 311. For comments on succession to the Genocide Convention see Article XI, mns 19–27. 25 See Reservations, mns 4–6, for comment. 26 See Summary of Practice, paras 176, 218 and 311. As for reservations, the depositary practice follows GA Resolution 598(VI), which (specifically referring to the Genocide Convention) directed the Secretary-General to implement the approach outlined in the ICJ’s Reservations opinion and thus to accept the deposit of documents containing reservations or objections and to notify states accordingly. 27 Summary of Practice, para. 214 (distinguishing further between objections by contracting or signatory parties and objections by other states, which are treated as ‘communications’ and not registered). 28 Summary of Practice, para. 216. 29 Aust, Modern Treaty Law and Practice (2nd ed.), 334. By the same token, the legal effects referred to in Article XVII lit. (c) and (e) do not depend on the notification. 30 A different rule would seem to apply to communications specifically intended for one particular state party, such as protests against reservations: pursuant to Article 78 lit. (c) VCLT, these shall ‘be considered as received by the State for which it was intended only when the latter State has been informed by the depositary’. For details see Villiger, Commentary on the VCLT, 953. 24

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[the depositary’s] mission’.31 Since the adoption of the Genocide Convention, states have been careful to circumscribe the role of the depositary. With respect to reservations, the ICJ’s jurisprudence (given effect by General Assembly resolutions32) has clarified that, if a treaty is silent on the matter, depositaries are not to assess the permissibility of a reservation or indeed pronounce upon the validity of a ratification or accession to which a reservation has been appended.33 More generally, Article 77 para. 1 lit. (d) VCLT (in whose light Article XVII has to be read) restricts the depositary’s role to ‘examining whether the signature or any instrument, notification or communication relating to the treaty is in due and proper form and, if need be, bringing the matter to the attention of the state in question.’34 Against that background, the depositary’s role is largely limited to verifying the formal validity of acts and documents and to verify whether certain basic, objective requirements have been met, as opposed to pronouncing on substantive questions. With respect to the Genocide Convention, this notably means that before 11 notifying other states of signatures, ratifications and accessions, the SecretaryGeneral will assess whether the instrument in question has been properly signed and whether it emanates from an authority that can represent the state internationally;35 in addition, he will also verify that the state purporting to become bound by the Convention was eligible to do so under Article XI.36 With respect to reservations, the depositary’s screening function would seem to be limited to assessing whether the reservation was submitted out of time.37 With respect to declarations of succession, the depositary arguably has a more prominent role. One reason for this is that it may be controversial whether a new state emerging on the territory of an existing state is to be considered a successor or a continuator state.38 In this case, depositary practice may be of considerable relevance. By the same token, depositary 31

Ouguergouz/Villalpando/Morgan-Foster, in: Corten/Klein, VCLTs Commentary, 1718. GA Resolutions 598 (VI) and 1452 B (XIV). 33 See the Reservations opinion, ICJ Reports 1951, 15, 27; and further Right of Passage, ICJ Reports 1957, 125, 145–7. 34 For details see Ouguergouz/Villalpando/Morgan-Foster, in: Corten/Klein, VCLTs Commentary, 1734–44. 35 See Summary of Practice, paras 121–33; Ouguergouz/Villalpando/Morgan-Foster, in: Corten/ Klein, VCLTs Commentary, 1736–7. 36 As clarified in Article XI, the Convention is open to UN member states as well as states that have been invited to join. This restrictive approach – which was subsequently abandoned in favour of the more inclusive ‘all states’ formula – means that the depositary could ignore or reject purported accessions by entities whose claim to statehood is dubious, as long as these are neither UN members or have been invited to join. For more on the different approaches to eligibility see Article XI, mns 8–11. 37 See Article 19 VCLT, which requires reservations to be made ‘when signing, ratifying, accepting, approving or acceding to a treaty’. See Summary of Practice, paras 204–6, for examples of belated reservations that the Secretary-General nevertheless notified. 38 The protracted debates concerning the status of the Federal Republic of Yugoslavia – which in the 1990 s claimed to continue the legal personality of the former Yugoslavia, but was considered a successor state by the majority of UN Members – provide the most prominent recent example. It should be noted that for a considerable period, the Secretary-General was inclined to accept the ‘continuity thesis’ and expressly stated that this would be so notwithstanding General Assembly and Security Council resolutions rejecting that claim (see notably Summary of Practice, para. 297). The relevant passages in the ‘Summary of Practice’ caused a ‘furore’ among member states and subsequently had to be withdrawn (see Wood, MPYUNL 1 (1997), 254–6; and the erratum slip added to correct para. 297 of the Summary of Practice). After the fall of the Milosevic regime, the Federal Republic of Yugoslavia reversed its position, and now considers itself a successor state. 32

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practice has shaped the procedural conditions governing declarations of succession: notably, the Secretary-General’s practice suggests that in order validly to succeed, a successor state is required to submit a formal instrument specifically referring to the Convention.39 Both aspects suggest that in handling of declarations of succession, the Secretary-General has not only performed an administrative function, but also clarified the legal regime governing succession to treaties.

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III. Other depositary notifications – lit. (b)–(f) In lit. (b)–(f), Article XVII lists further acts and effects of which states are to be notified. As these are of lesser relevance in practice, they can be dealt with more briefly. Mutatis mutandis, the rules set out above, in relation to lit. (a) apply to lit. (b)–(f) as well. Territorial application: Pursuant to Article XVII lit. (b), the depositary is required to notify states of declarations by which state parties extend the application of the Convention to non-metropolitan territories. For treaties with a territorial application clause, this indeed is a common depositary function.40 As noted in the commentary to Article XII,41 such declarations have only been made by very few states; hence practice under Article XVII lit. (b) is sparse. When they were made, the depositary, having assessed that the declaring state indeed was responsible for the foreign relations of the non-metropolitan territory in question, informed UN members and other states. Entry into force: In requiring the Secretary-General to inform states of the date on which the Convention enters into force, Article XVII lit. (c) prescribes another typical depositary function.42 In some way, the notification referred to might be said to be the most decisive of all notifications, as only upon entering into force, the Convention could be the source of rights and obligations of state parties. In line with Article XIII, the Convention entered into force on 12 January 1951, and states were duly notified of this by the Secretary-General. As noted in the commentary to Article XIII,43 this notification was preceded by a good deal of debate and uncertainty. For a considerable time, it had seemed as if in order to determine the critical date, the Secretary-General would have to decide on the validity of ratifications submitted with reservations; it was only the simultaneous ratification, without reservation, by five states that relieved the Secretary-General of that dilemma. Denunciation and abrogation: Article XVII lit. (d) and (e) specify notification requirements relating to the denunciation or termination of the Convention. As the drafters (after some debate44) decided to provide for a right to withdrawal and for the automatic termination of the Convention if membership falls below sixteen, the 39 See Summary of Practice, paras 303–7, expressly stating that ‘blanket declarations’ covering ‘all treaties’ of the predecessor state would be considered insufficient. By contrast, it should be noted that in the Croatian Genocide case, the ICJ considered that Federal Republic of Yugoslavia had succeeded to treaties binding upon its predecessor state, the Socialist Federal Republic of Yugoslavia, by virtue of a general declaration made by parliamentarians. For further details on succession to the Convention see Article XI, mns 19–27 and Article XIII, mns 12–4. 40 See Summary of Practice, paras 263–85. 41 Article XII, mn. 7. 42 See also Article 77 para. 1 lit. (f) VCLT. 43 Article XIII, mn. 9, as well as briefly supra, mn. 11. 44 See Article XIV, mn. 5, and Article XV, mn. 4.

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inclusion of lit. (d) and (e) was only natural. As no state has so far withdrawn from the Convention, no treaty action under Article XVII lit. (d) or (e) has been required to date. It may be added that if a state ceases to exist, the depositary does not regularly notify other states,45 even though this may be inferred from the notification of declarations of succession where these are made. Requests for revision: Article XVII lit. (f) relates to requests for a revision of the 16 Convention. As noted in the commentary to Article XVI,46 while no state has so far expressly requested the revision of the Convention, the Secretary-General, in 1952, treated the Chinese government’s submission of a corrected treaty text as a request for revision in the sense of Article XVI, and duly notified member states (as well as the General Assembly) of it. Other than that, Article XVII lit. (f) has not acquired practical relevance.

D. Concluding Observations Article XVII is a useful provision, even though in retrospect, it seems unnecessa- 17 rily detailed. If the Convention were to be drafted today, it would presumably limit itself to designating the Secretary-General as depositary; it could then be taken for granted that he would perform the acts listed in the various literae of Article XVII (as well as subsequent provisions). Still, this need not be taken as a criticism: as noted above, treaty practice under the Genocide Convention has influenced the contemporary understanding of the depositary function. This suggests that in addition to safeguarding essential community interests, the Convention has also had an impact on highly technical areas of international law. 45 See Multilateral Treaties Deposited with the Secretary-General of the United Nations, which in the introductory section notes that the number of participants in a treaty ‘does not include those States that have ceased to exist’ (http://treaties.un.org/Pages/DB.aspx?path=DB/MTDSGStatus/ pageIntro_en.xml). 46 See Article XVI, mns 8–9.

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Article XVIII The original of the present Convention shall be deposited in the archives of the United Nations. A certified copy of the Convention shall be transmitted to all Members of the United Nations and to the non-member states contemplated in Article XI. Table of Contents: A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

mn. 1 2 3

A. Introduction The depositary is frequently described as the ‘custodian’ of a treaty,1 and this is 1 reflected in Article XVIII. Even though the provision does not mention the UN Secretary-General, it is clear that he, as the depositary of the treaty, is supposed to deposit the Convention and transmit certified copies to states. Together with Articles XVII and XIX, the provision comprises the Conventions rather lengthy elaboration on the depositary functions. Now that these functions have become standardised, international agreements often are content merely to designate a depositary. As even without express clauses, it is understood that the depositary would perform his duties ‘in accordance with treaty law and established practice’,2 more recent treaties only rarely contain clauses like Article XVIII.3 B. Drafting history Predictably, Article XVIII was the subject of little debate. Article XXIII of the 2 Secretariat Draft had already envisaged that a version of the Convention would be deposited in the United Nations archives. Unlike Article XVIII as eventually adopted, this provision had however mentioned ‘a copy of the Convention signed by the President of the General Assembly and the Secretary-General of the United Nations’.4 The United States proposed to omit references to signatures and simply refer to ‘the original of this Convention’.5 Curiously, the Sub-Committee charged to deal with final clauses could not reach agreement on whether the archived version would need to carry the signatures of the President of the General Assembly and the Secretary-General.6 The Ad Hoc Committee then unanimously accepted the text 1

Villiger, Commentary on the VCLT, 941; Final Clauses Handbook, 122 (Glossary: ‘Depositary’). Final Clauses Handbook, 9. 3 In contrast, it is still rather common for final clause of more recent multilateral treaties to combine the substance of Articles X (authentic languages) and XVIII (deposit) of the Genocide Convention in one single clause, which typically provides: ‘This Convention, of which the … texts are equally authentic, shall be deposited with the Secretary-General of the United Nations.’ This indeed would seem more economical. 4 UN Doc. E/447, 62. From the unofficial title of that provision (‘Deposit of the Original of the Convention and Transmission of Copies to Governments’), it was clear that the ‘copy’ in question was to be the ‘Original’. 5 UN Doc. E/623 (draft article XIX). 6 See UN Doc. E/AC.25/10, 11. 2

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Article XVIII 2–4 proposed by the United States, which was adopted, with minor revisions, as Article XVIII.7 Finally, it might be interesting to note that as there was only very little time between the end of the deliberations and the adoption of the Convention, the Secretariat was unable to prepare printed versions of the original in all five authentic languages; instead type-written versions in English, French, Russian and Spanish, as well as a calligraphic version in Chinese were used.8

C. Interpretation 3 The two paragraphs of Article XVIII are largely self-explanatory. Article XVIII para. 1 stipulates what has been described as the ‘primary function’9 of a depositary, subsequently codified in Article 77 para. 1 lit. (a) VCLT: the safekeeping of the original treaty text. In addition to the original itself, the custodial function extends to ‘any full powers delivered to the depositary’.10 The United Nations archives in New York are the obvious location for treaties of which the Secretary-General acts as depositary. The Secretary-General’s bulletin governing the UN procedures to be followed clarifies that treaties are to remain in the custody of the Treaty Section.11 4 As there is only one original (kept by the depositary), governments will require a certified copy to present to domestic organs whose approval may be required under their respective constitutional legal systems.12 This is ensured by Article XVIII para. 2, which – in line with standard practice13 – directs the depositary to send certified copies of the Convention to UN members and states invited to participate in the Convention. The copy comprises the complete text of the treaty in all authentic languages, plus a certification, on behalf of the depositary, that the text is indeed a true copy.14 An electronic version is available through the UN Treaty Database.15 7

UN Doc. E/794, 48. See the statement by Mr. Kerno, UN Doc. A/C.6/SR.132, 70. 9 Ouguergouz/Villalpando/Morgan-Foster, in: Corten/Klein, VCLTs Commentary, 1727. 10 Article 77 para. 1 lit. (a) VCLT. 11 UN Doc. ST/SGB/2001/7, section 6.3. 12 Summary of Practice, para. 63; Ouguergouz/Villalpando/Morgan-Foster, in: Corten/Klein, VCLTs Commentary, 1729. 13 See Article 77 para. 1 lit. (b) VCLT. 14 For details see Summary of Practice, paras 65–7. 15 See http://treaties.un.org/doc/Treaties/1951/01/19510112%2008-12%20PM/Ch_IV_1p.pdf. 8

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Article XIX The present Convention shall be registered by the Secretary-General of the United Nations on the date of its coming into force. Table of Contents: A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

mn. 1 2 3

A. Introduction Article 102 of the UN Charter and Article 80 VCLT require state parties to register 1 treaties to which they are parties, thus seeking to bring about transparency in international relations and to eliminate secret diplomacy.1 Treaties of a humanitarian character are designed to be in the public domain, and the Genocide Convention was always going to be an ‘open covenant, openly arrived at’.2 Article XIX spells this out in express terms. In imposing the duty to register the Convention upon the SecretaryGeneral, Article XIX specifies one of the typical functions of the treaty depositary. It is thus naturally linked to Articles XVII and XVIII, which designate the SecretaryGeneral as the depositary and provide a detailed catalogue of his other tasks. In so far as it refers to the ‘date of [the Convention’s] coming into force’, Article XIX refers back to Article XIII. B. Drafting history Article XIX was agreed without debate. It is identical to Article XXIV of the 2 Secretariat Draft3 and Article XIX of the Ad Hoc Committee Draft4 and did not give rise to any comments during the drafting process. C. Interpretation For international treaty relations to be transparent, it is important that treaties are 3 registered. As the custodians of treaties, depositaries are best placed to effect registration, and in line with Article XIX, Article 77 para. 1 lit. (g) VCLT lists the ‘registering [of] the treaty with the Secretariat of the United Nations’ as one of the standard duties of the depositary. As to the place of registration (a matter not mentioned in 1 Article 102 para. 1 UN Charter provides: ‘Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.’ Non-registration does not affect the validity of the agreement, but pursuant to Article 102 para. 2 of the Charter, parties to a non-registered treaty may not invoke it before UN organs. For details see Knapp/Martens, in: Simma/Khan/Nolte/Paulus, Charter of the UN (3rd ed.), 1273; Tabory, AJIL 76 (1982), 350. 2 See Point 1 of President Wilson’s ‘Fourteen Points’, which inspired Article 102 of the Charter and its forerunner, Article 18 of the Covenant of the League of Nations (reproduced in Foreign Relations of the United States, vol. 1 (1918), Suppl. I, 12). 3 UN Doc. E/447, 63. 4 UN Doc. E/794, 49.

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Article XIX 3, 4 Article XIX), the United Nations have, since 1945, successfully established themselves as the central ‘depository’ for international treaties of a universal character.5 The procedure governing the registration is spelled out in the ‘Regulations to Give Effect to Article 102 of the Charter of the United Nations’.6 In compliance with Article XIX, the Genocide Convention was registered with the United Nations on 12 January 1951, the date of its entry into force. In the light of Article 102, this presumably would have happened even without an express provision.7 4 While Article XIX is silent on the matter, it is clear from Article 102 of the Charter and the UN’s regulations8 that the Convention, following registration, would be published in the United Nations Treaty Series.9 There it appears in vol. 78, at page 277, under the registration number I-1021. 5 McNair thus described it as ‘an indispensable piece of international apparatus’ (Law of Treaties, 179). 6 Adopted by GA Resolution 97 (1), later modified through GA Resolutions 364 B (IV), 482 (V) and 33/141 A; available at http://treaties.un.org/xml/db/MSDB/pageRegulation_en.html. 7 See Final Clauses Handbook, 77 (noting that the inclusion of a provision on registration has become unnecessary). 8 See Article 102 para. 1 of the UN Charter (‘Every treaty … shall be registered with the Secretariat and published by it’ [emphasis added]) and Article 12 para. 1 of the ‘Regulations to Give Effect to Article 102 of the Charter of the United Nations’ (fn. 6). 9 As noted by Tabory, AJIL 76 (1982), 351: ‘Although registration (or filing and recording) and publication are two distinct phases, they are part of a “continuous and interdependent process”.’

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ANNEXES TO THE COMMENTARY Annex 1 Authentic Treaty Versions Table of Contents: I. II. III. IV. V.

English text of the Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . French text of the Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Spanish text of the Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Russian text of the Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chinese text of the Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. English text of the Convention Convention on the Prevention and Punishment of the Crime of Genocide Adopted by the General Assembly of the United Nations on 9 December 1948 The Contracting Parties, Having considered the declaration made by the General Assembly of the United Nations in its resolution 96 (I) dated 11 December 1946 that genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world; Recognizing that at all periods of history genocide has inflicted great losses on humanity; and Being convinced that, in order to liberate mankind from such an odious scourge, international cooperation is required, Hereby agree as hereinafter provided: Article I 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. Article II 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. Article III The following acts shall be punishable: (a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide.

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I. English text of the Convention

Article IV Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals. Article V The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III. Article VI Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction. Article VII Genocide and the other acts enumerated in article III shall not be considered as political crimes for the purpose of extradition. The Contracting Parties pledge themselves in such cases to grant extradition in accordance with their laws and treaties in force. Article VIII Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III. Article IX 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. Article X The present Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall bear the date of 9 December 1948. Article XI The present Convention shall be open until 31 December 1949 for signature on behalf of any Member of the United Nations and of any non-member State to which an invitation to sign has been addressed by the General Assembly. The present Convention shall be ratified, and the instruments of ratification shall be deposited with the Secretary-General of the United Nations. After 1 January 1950, the present Convention may be acceded to on behalf of any Member of the United Nations and of any non-member State which has received an invitation as aforesaid. Instruments of accession shall be deposited with the Secretary-General of the United Nations. Article XII Any Contracting Party may at any time, by notification addressed to the Secretary-General of the United Nations, extend the application of the present Convention to all or any of the territories for the conduct of whose foreign relations that Contracting Party is responsible.

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I. English text of the Convention

Annex 1

Article XIII On the day when the first twenty instruments of ratification or accession have been deposited, the Secretary-General shall draw up a proce`s-verbal and transmit a copy thereof to each Member of the United Nations and to each of the non-member States contemplated in article XI. The present Convention shall come into force on the ninetieth day following the date of deposit of the twentieth instrument of ratification or accession. Any ratification or accession effected, subsequent to the latter date shall become effective on the ninetieth day following the deposit of the instrument of ratification or accession. Article XIV The present Convention shall remain in effect for a period of ten years as from the date of its coming into force. It shall thereafter remain in force for successive periods of five years for such Contracting Parties as have not denounced it at least six months before the expiration of the current period. Denunciation shall be effected by a written notification addressed to the Secretary-General of the United Nations. Article XV If, as a result of denunciations, the number of Parties to the present Convention should become less than sixteen, the Convention shall cease to be in force as from the date on which the last of these denunciations shall become effective. Article XVI A request for the revision of the present Convention may be made at any time by any Contracting Party by means of a notification in writing addressed to the Secretary-General. The General Assembly shall decide upon the steps, if any, to be taken in respect of such request. Article XVII The Secretary-General of the United Nations shall notify all Members of the United Nations and the non-member States contemplated in article XI of the following: (a) Signatures, ratifications and accessions received in accordance with article XI; (b) Notifications received in accordance with article XII; (c) The date upon which the present Convention comes into force in accordance with article XIII; (d) Denunciations received in accordance with article XIV; (e) The abrogation of the Convention in accordance with article XV; (f) Notifications received in accordance with article XVI. Article XVIII The original of the present Convention shall be deposited in the archives of the United Nations. A certified copy of the Convention shall be transmitted to each Member of the United Nations and to each of the non-member States contemplated in article XI. Article XIX The present Convention shall be registered by the Secretary-General of the United Nations on the date of its coming into force.

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II. French text of the Convention

II. French text of the Convention Convention pour la pre´vention et la re´pression du crime de ge´nocide Adopte´e par l’Assemble´e ge´ne´rale des Nations Unies le 9 de´cembre 1948 Les Parties contractantes, Conside´rant que l’Assemble´e ge´ne´rale de l’Organisation des Nations Unies, par sa re´solution 96 (I) en date du 11 de´cembre 1946, a de´clare´ que le ge´nocide est un crime du droit des gens, en contradiction avec l’esprit et les fins des Nations Unies et que le monde civilise´ condamne; Reconnaissant qu’a` toutes les pe´riodes de l’histoire le ge´nocide a inflige´ de grandes pertes a` l’humanite´; Convaincues que, pour libe´rer l’humanite´ d’un fle´au aussi odieux, la coope´ration internationale est ne´cessaire; Conviennent de ce qui suit: Article I Les Parties contractantes confirment que le ge´nocide, qu’il soit commis en temps de paix ou en temps de guerre, est un crime du droit des gens, qu’elles s’engagent a` pre´venir et a` punir. Article II Dans la pre´sente Convention, le ge´nocide s’entend de l’un quelconque des actes ci-apre`s, commis dans l’intention de de´truire, ou tout ou en partie, un groupe national, ethnique, racial ou religieux, comme tel: (a) Meurtre de membres du groupe; (b) Atteinte grave a` l’inte´grite´ physique ou mentale de membres du groupe; (c) Soumission intentionnelle du groupe a` des conditions d’existence devant entraıˆner sa destruction physique totale ou partielle; (d) Mesures visant a` entraver les naissances au sein du groupe; (e) Transfert force´ d’enfants du groupe a` un autre groupe. Article III Seront punis les actes suivants: (a) Le ge´nocide; (b) L’entente en vue de commettre le ge´nocide; (c) L’incitation directe et publique a` commettre le ge´nocide; (d) La tentative de ge´nocide; (e) La complicite´ dans le ge´nocide. Article IV Les personnes ayant commis le ge´nocide ou l’un quelconque des autres actes e´nume´re´s a` l’article III seront punies, qu’elles soient des gouvernants, des fonctionnaires ou des particuliers. Article V Les Parties contractantes s’engagent a` prendre, conforme´ment a` leurs constitutions respectives, les mesures le´gislatives ne´cessaires pour assurer l’application des dispositions de la pre´sente Convention, et notamment a` pre´voir des sanctions pe´nales efficaces frappant les personnes coupables de ge´nocide ou de l’un quelconque des autres actes e´nume´re´s a` l’article III. Article VI Les personnes accuse´es de ge´nocide ou de l’un quelconque des autres actes e´nume´re´s a` l’article III seront traduites devant les tribunaux compe´tents de l’Etat sur le territoire duquel l’acte a e´te´ commis, ou devant la cour criminelle internationale qui sera compe´tente a` l’e´gard de celles des Parties contractantes qui en auront reconnu la juridiction.

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II. French text of the Convention

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Article VII Le ge´nocide et les autres actes e´nume´re´s a` l’article III ne seront pas conside´re´s comme des crimes politiques pour ce qui est de l’extradition. Les Parties contractantes s’engagent en pareil cas a` accorder l’extradition conforme´ment a` leur le´gislation et aux traite´s en vigueur. Article VIII Toute Partie contractante peut saisir les organes compe´tents de l’Organisation des Nations Unies afin que ceux-ci prennent, conforme´ment a` la Charte des Nations Unies, les mesures qu’ils jugent approprie´es pour la pre´vention et la re´pression des actes de ge´nocide ou de l’un quelconque des autres actes e´nume´re´s a` l’article III. Article IX Les diffe´rends entre les Parties contractantes relatifs a` l’interpre´tation, l’application ou l’exe´cution de la pre´sente Convention, y compris ceux relatifs a` la responsabilite´ d’un Etat en matie`re de ge´nocide ou de l’un quelconque des autres actes e´nume´re´s a` l’article III, seront soumis a` la Cour internationale de Justice, a` la requeˆte d’une partie au diffe´rend. Article X La pre´sente Convention, dont les textes anglais, chinois, espagnol, français et russe feront e´galement foi, portera la date du 9 de´cembre 1948. Article XI La pre´sente Convention sera ouverte jusqu’au 31 de´cembre 1949 a` la signature au nom de tout Membre de l’Organisation des Nations Unies et de tout Etat non membre a` qui l’Assemble´e ge´ne´rale aura adresse´ une invitation a` cet effet. La pre´sente Convention sera ratifie´e et les instruments de ratification seront de´pose´s aupre`s du Secre´taire ge´ne´ral de l’Organisation des Nations Unies. A partir du 1er janvier 1950, il pourra eˆtre adhe´re´ a` la pre´sente Convention au nom de tout Membre de l’Organisation des Nations Unies et de tout Etat non membre qui aura reçu l’invitation sus mentionne´e. Les instruments d’adhe´sion seront de´pose´s aupre`s du Secre´taire ge´ne´ral de l’Organisation des Nations Unies. Article XII Toute Partie contractante pourra, a` tout moment, par notification adresse´e au Secre´taire ge´ne´ral de l’Organisation des Nations Unies, e´tendre l’application de la pre´sente Convention a` tous les territoires ou a` l’un quelconque des territoires dont elle dirige les relations exte´rieures. Article XIII De`s le jour ou` les vingt premiers instruments de ratification ou d’adhe´sion auront e´te´ de´pose´s, le Secre´taire ge´ne´ral en dressera proce`s-verbal. Il transmettra copie de ce proce`s-verbal a` tous les Etats Membres de l’Organisation des Nations Unies et aux Etats non membres vise´s par l’article XI. La pre´sente Convention entrera en vigueur le quatre-vingt-dixie`me jour qui suivra la date du de´poˆt du vingtie`me instrument de ratification ou d’adhe´sion. Toute ratification ou adhe´sion effectue´e ulte´rieurement a` la dernie`re date prendra effet le quatrevingt-dixie`me jour qui suivra le de´poˆt de l’instrument de ratification ou d’adhe´sion. Article XIV La pre´sente Convention aura une dure´e de dix ans a` partir de la date de son entre´e en vigueur. Elle restera par la suite en vigueur pour une pe´riode de cinq ans, et ainsi de suite, vis-a`-vis des Parties contractantes qui ne l’auront pas de´nonce´e six mois au moins avant l’expiration du terme.

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II. French text of the Convention

La de´nonciation se fera par notification e´crite adresse´e au Secre´taire ge´ne´ral de l’Organisation des Nations Unies. Article XV Si, par suite de de´nonciations, le nombre des parties a` la pre´sente Convention se trouve ramene´ a` moins de seize, la Convention cessera d’eˆtre en vigueur a` partir de la date a` laquelle la dernie`re de ces de´nonciations prendra effet. Article XVI Une demande de re´vision de la pre´sente Convention pourra eˆtre formule´e en tout temps par toute Partie contractante, par voie de notification e´crite adresse´e au Secre´taire ge´ne´ral. L’Assemble´e ge´ne´rale statuera sur les mesures a` prendre, s’il y a lieu, au sujet de cette demande. Article XVII Le Secre´taire ge´ne´ral de l’Organisation des Nations Unies notifiera ce qui suit a` tous les Etats Membres de l’Organisation et aux Etats non membres vise´s par l’article XI: (a) Les signatures, ratifications et adhe´sions reçues en application de l’article XI; (b) Les notifications reçues en application de l’article XII; (c) La date a` laquelle la pre´sente Convention entrera en vigueur, en application de l’article XIII; (d) Les de´nonciations reçues en application de l’article XIV; (e) L’abrogation de la Convention en application de l’article XV; (f) Les notifications reçues en application de l’article XVI. Article XVIII L’original de la pre´sente Convention sera de´pose´ aux archives de l’Organisation des Nations Unies. Une copie certifie´e conforme sera adresse´e a` tous les Etats Membres de l’Organisation des Nations Unies et aux Etats non membres vise´s par l’article XI.

Article XIX La pre´sente Convention sera enregistre´e par le Secre´taire ge´ne´ral de l’Organisation des Nations Unies a` la date de son entre´e en vigueur.

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III. Spanish text of the Convention

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III. Spanish text of the Convention Convencio´n para la Prevencio´n y la Sancio´n del Delito de Genocidio Adoptado por la Asamblea General de las Naciones Unidas el 9 de diciembre de 1948 Las Partes Contratantes, Considerando que la Asamblea General de las Naciones Unidas, por su Resolucio´n 96 (I) del 11 de diciembre de 1946, ha declarado que el genocidio es un delito de derecho internacional contrario al espı´ritu y a los fines de las Naciones Unidas y que el mundo civilizado condena; Reconociendo que en todos los perı´odos de la historia el genocidio ha infligido grandes pe´rdidas a la humanidad; Convencidas de que para liberar a la humanidad de un flagelo tan odioso se necesita la cooperacio´n internacional; Convienen en lo siguiente: Artı´culo I Las Partes contratantes confirman que el genocidio, ya sea cometido en tiempo de paz o en tiempo de guerra, es un delito de derecho internacional que ellas se comprometen a prevenir y a sancionar. Artı´culo II En la presente Convencio´n, se entiende por genocidio cualquiera de los actos mencionados a continuacio´n, perpetrados con la intencio´n de destruir, total o parcialmente, a un grupo nacional, e´tnico, racial, o religioso, como tal: (a) Matanza de miembros del grupo; (b) Lesio´n grave a la integridad fı´sica o mental de los miembros del grupo; (c) Sometimiento intencional del grupo a condiciones de existencia que hayan de acarrear su destruccio´n fı´sica, total o parcial; (d) Medidas destinadas a impedir los nacimientos en el seno del grupo; ~os del grupo a otro grupo. (e) Traslado por fuerza de nin Artı´culo III Sera´n castigados los actos siguientes: (a) El genocidio; (b) La asociacio´n para cometer genocidio; (c) La instigacio´n directa u pública a cometer genocidio; (d) La tentativa de genocidio; (e) La complicidad en el genocidio. Artı´culo IV Las personas que hayan cometido genocidio o cualquiera de los otros actos enumerados en el artı´culo III, sera´n castigadas, ya se trate de gobernantes, funcionarios o particulares. Artı´culo V Las Partes contratantes se comprometen a adoptar, con arreglo a sus Constituciones respectivas, las medidas legislativas necesarias para asegurar la aplicacio´n le las disposiciones de la presente Convencio´n, y especialmente a establecer sanciones penales eficaces para castigar a las personas culpables de genocidio o de cualquier otro e los actos enumerados en el artı´culo III. Artı´culo VI Las personas acusadas de genocidio o de uno cualquiera de los actos enumerados en el artı´culo III, sera´n juzgadas por un tribunal competente del Estado en cuyo territorio el acto fue cometido, o

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III. Spanish text of the Convention

ante la corte penal internacional que sea competente respecto a aquellas de las Partes contratantes que hayan reconocido su jurisdiccio´n. Artı´culo VII A los efectos de extradicio´n, el genocidio y los otros actos enumerados en el artı´culo III no sera´n considerados como delitos polı´ticos. Las Partes contratantes se comprometen, en tal caso, a conceder la extradicio´n conforme a su legislacio´n y a los tratados vigentes. Artı´culo VIII Toda Parte contratante puede recurrir a los o´rganos competentes de las Naciones Unidas a fin de que e´stos tomen, conforme a la Carta de las Naciones Unidas, las medidas que juzguen apropiadas para la prevencio´n y la represio´n de actos de genocidio o de cualquiera de los otros actos enumerados en el artı´culo III. Artı´culo IX Las controversias entre las Partes contratantes, relativas a la interpretacio´n, aplicacio´n o ejecucio´n de la presente Convencio´n, incluso las relativas a la responsabilidad de un Estado en materia de genocidio o en materia de cualquiera de los otros actos enumerados en el artı´culo III, sera´n sometidas a la Corte Internacional de Justicia a peticio´n de una de las Partes en la controversia. Artı´culo X ~ol, france´s y ruso sera´n igualmente La presente Convencio´n, cuyos textos ingle´s, chino, espan aute´nticos, llevara´ la fecha de 9 de diciembre de 1948. Artı´culo XI La presente Convencio´n estara´ abierta hasta el 31 de diciembre de 1949 a la firma de todos los Miembros de las Naciones Unidas y de todos los Estados no miembros a quienes la Asamblea General haya dirigido una invitacio´n a este efecto. La presente Convencio´n sera´ ratificada y los instrumentos de ratificacio´n sera´n depositados en la Secretarı´a General de las Naciones Unidas. A partir del 1 de enero de 1950, sera´ posible adherir a la presente Convencio´n en nombre de todo Miembro de las Naciones Unidas y de todo Estado no miembro que haya recibido la invitacio´n arriba mencionada. Los instrumentos de adhesio´n sera´n depositados en la Secretarı´a General de las Naciones Unidas. Artı´culo XII Toda Parte contratante podra´, en todo momento, por notificacio´n dirigida al Secretario General de las Naciones Unidas, extender la aplicacio´n de la presente Convencio´n a todos los territorios o a uno cualquiera de los territorios de cuyas relaciones exteriores sea responsable. Artı´culo XIII En la fecha en que hayan sido depositados los veinte primeros instrumentos de ratificacio´n o de adhesio´n, el Secretario General levantara´ un acta y transmitira´ copia de dicha acta a todos los Estados Miembros de las Naciones Unidas y a los Estados no miembros a que se hace referencia en el artı´culo XI. La presente Convencio´n entrara´ en vigor el nonage´simo dı´a despue´s de la fecha en que se haga el depo´sito del vige´simo instrumento de ratificacio´n o de adhesio´n. Toda ratificacio´n o adhesio´n efectuada posteriormente a la última fecha tendra´ efecto el nonage´simo dı´a despue´s de la fecha en que se haga el depo´sito del instrumento de ratificacio´n o de adhesio´n.

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Artı´culo XIV ~os a partir de su entrada en vigor. La presente Convencio´n tendra´ una duracio´n de diez an ~os; y ası´ sucesivamente, respecto de las Permanecera´ despue´s en vigor por un perı´odo de cinco an Partes contratantes que no la hayan denunciado por lo menos seis meses antes de la expiracio´n del plazo. La denuncia se hara´ por notificacio´n escrita dirigida al Secretario General de las Naciones Unidas. Artı´culo XV Si, como resultado de denuncias, el número de las Partes en la Presente Convencio´n se reduce a menos de diecise´is, la Convencio´n cesara´ de estar en vigor a partir de la fecha en que la última de esas denuncias tenga efecto. Artı´culo XVI Una demanda de revisio´n de la presente Convencio´n podra´ ser formulada en cualquier tiempo por cualquiera de las Partes contratantes, por medio de notificacio´n escrita dirigida al Secretario General. La Asamblea General decidira´ respecto a las medidas que deban tomarse, si hubiere lugar, respecto a tal demanda. Artı´culo XVII El Secretario General de las Naciones Unidas notificara´ a todos los Estados Miembros de las Naciones Unidas y a los Estados no miembros a que se hace referencia en el artı´culo XI: (a) Las firmas, ratificaciones y adhesiones recibidas en aplicacio´n del artı´culo XI; (b) Las notificaciones recibidas en aplicacio´n del artı´culo XII; (c) La fecha en que la presente Convencio´n entrara´ en vigor en aplicacio´n del artı´culo XIII; (d) Las denuncias recibidas en aplicacio´n del artı´culo XIV; (e) La abrogacio´n de la Convencio´n, en aplicacio´n del artı´culo XV; (f) Las notificaciones recibidas en aplicacio´n del artı´culo XVI. Artı´culo XVIII El original de la presente Convencio´n sera´ depositado en los archivos de las Naciones Unidas. Una copia certificada sera´ dirigida a todos los Estados Miembros de las Naciones Unidas y a los Estados no miembros a que se hace referencia en el artı´culo XI. Artı´culo XIX La presente sera´ registrada por el Secretario General de las Naciones Unidas en las fecha de su entrada en vigor.

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IV. Russian text of the Convention

IV. Russian text of the Convention 9=?4534?4@AB>:4