Pulling the Stops on Genocide: the State or the Individual?
| DOI | 10.1093/ejil/chp074 |
| Pages | 1195-1222 |
| Date | 01 November 2009 |
| Year | 2009 |
| Published By | Oxford University Press |
The European Journal of International Law Vol. 20 no. 4 © EJIL 2010; all rights reserved
..........................................................................................
EJIL (2009), Vol. 20 No. 4, 1195–1222 doi: 10.1093/ejil/chp074
1 Introduction
On 26 February 2007, the International
Court of Justice (ICJ) came out with the
much-awaited decision on the Republic
of Bosnia and Herzegovina’s (henceforth
Bosnia-Herzegovina) charges of genocide
against the Federal Republic of Yugosla-
via, Serbia, and Montenegro (henceforth
Serbia-Montenegro). This is the first ICJ
decision on a state’s charges of genocide
* LL.M, Georgetown University Law Center. Mem-
ber of the New York and Philippine bars. Email:
acasuncion@gmail.com.
Pulling the Stops on Genocide:
The State or the Individual?
Amabelle C. Asuncion*
Abstract
The International Court of Justice’s decision on the Application of the Convention on the Pre-
vention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro) has exposed the unforeseen irony in the international consensus on the singular
distinction of genocide as the crime of crimes. Defying expectations, this classification coupled
with the conception of a ‘civil genocide’ has magically transformed into a legal shield which
protects states from responsibility even as individual convictions are being handed down. Yet,
the history of the Genocide Convention easily recalls the objective of preventing the commis-
sion of genocide by states and individuals alike. This article thus ponders on the virtue of seek-
ing recourse under the Genocide Convention – whether against the state or the individual. In
traversing this inquiry, it embarks on a comparative analysis of selected case law from the Inter-
national Criminal Tribunal of Yugoslavia, the International Criminal Tribunal of Rwanda, and
the International Court of Justice. As it uncovers a counterintuitive clash of jurisprudential
outcome and a widening gap between the ideal and the real, the article identifies the legal bolts
which need to be adjusted so that the genocide stops can be pulled in the right direction.
against another state, although four cases
(including this) have been filed pursuant
to Article IX of the Convention on the
Prevention and Punishment of the Crime
of Genocide.1 To Bosnia-Herzegovina’s
1 The other three cases are: (i) Trial of Pakistani
Prisoners of War (Pakistan v. India) filed in 1973,
which was discontinued upon the request of the
Parties due to negotiations; (ii) The Legality of Use
of Force Case (Yugoslavia v. NATO Members) filed
on 25 Apr. 1999, which was rejected by the ICJ
due to absence of US consent to the ICJ’s exercise
of jurisdiction; and (iii) Application by the Republic
of Croatia Instituting Proceedings Against the Fed-
eral Republic of Yugoslavia filed on 2 July 1999,
which remains pending before the ICJ.
1196 EJIL 20 (2009), 1195–1222
disappointment, the ICJ held that geno-
cide had not been committed except in
Srebrenica and that Serbia-Montenegro’s
responsibility was for failure to prevent
and punish the commission of genocide.
Serbia-Montenegro was held not to have
committed, conspired to commit, incited
to commit, or been complicit in the com-
mission of genocide. The landmark deci-
sion led to observations that it would
be difficult to make a state responsible
for genocide, given the ICJ’s stringent
requirements.2 With this development,
interesting questions arise: is it worth fil-
ing a genocide claim against a state or is
it more judicious to prosecute individuals
criminally? Then again, who should bear
the ultimate responsibility for genocide,
the state or individual perpetrators? Or
are the responsibilities of the state and its
individual agents so intertwined that one
is conditioned on the other?
To answer these questions, this article
examines the ICJ decision and decisions
of the International Criminal Tribunal
for Yugoslavia (ICTY) and the Interna-
tional Criminal Tribunal for Rwanda
(ICTR). The article posits the view that
prosecution before the ad hoc tribunals is
more efficient because they take a more
balanced approach despite the criminal
nature of the proceedings. On the other
hand, the ICJ has set up a system of proof
which effectively insulates states from
responsibility. Section 2 begins with a
brief background on the international
crime of genocide. Section 3 deals with
individual prosecutions under the ICTY
and the ICTR and analyses three major
decisions from each tribunal. Section 4
analyses and critiques the ICJ decision.
Section 5 compares and contrasts the
approaches of the three tribunals. Section
6 proposes that the relationship between
state and individual responsibilities is not
one of dependence but of causality where
one can trigger the other. The legal
architecture for genocide prosecution,
however, is designed for individual con-
victions and state acquittal. This section
argues that the Genocide Convention
meant to strengthen state responsibility,
so that if the stops are to be pulled, they
must be pulled against the state. Accord-
ingly, section 7 suggests a laundry list for
overhauling the legal labyrinth which
protects the state from responsibility.
2 The International Crime of
Genocide: Birth Pains
The Convention on the Prevention and
Punishment of the Crime of Genocide is
the international community’s condem-
nation of, and penance for, decades of
holocausts starting from the 1915 Arme-
nian massacre to the Nazi persecution of
the Jews. Dubbed as the crime of crimes,
genocide was carved out of ‘crimes
against humanity’ and defined as the
‘commission of specific acts3 with intent
2 Tosh, ‘Genocide Acquittal Provokes Legal De-
bate’, Institute for War and Peace Reporting Tri-
bunal Update No. 491, 2 Mar. 2007, available
at: http://iwpr.net/?p=tri&s=f&o=333772&
apc_state=henptri.
3 (a) Killing members of the group; (b) causing se-
rious 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; and (e) forcibly transferring
children of the group to another group: Conven-
tion on the Prevention and Punishment of the
Crime of Genocide (henceforth the ‘Genocide
Convention’), GA Res 217A(III), 10 Dec. 1948,
and 43(supp.) AJIL (1949) 127,Art. II.
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
