State Responsibility for Genocide: 25 Years After Srebrenica

Duties on States under the Genocide Convention and the Legacy of the ICTY, July 2020

Genocide is a contested term. It is contested owing to: what people desire genocide to mean; how genocide is actually defined as a crime in law; and when people deem the term genocide appropriate to apply to a particular situation.

Genocide might more appropriately be characterised as a paradox. Many people, if asked, will tell you precisely what they believe it to mean; yet few have an informed understanding of it in a strictly legal sense. The legal sense is important because genocide is a crime which a majority of States in the world have committed to ensuring does not occur since, at least, 1951. Whilst we are familiar with the oft-heard refrain - 'never again' - committed genocide indeed is.

Contestation over the concept and crime

Why then is there contestation over the term? The reason for the conceptual difficulty is that genocide is a crime defined in an international treaty (the "Genocide Convention") which came about after intense negotiations amongst States. The same States, of course, who were willing to bind themselves to the provisions of the treaty - you see the inherent, if not understandable, difficulty. The context was the horrific atrocities committed against the Jews of Europe, the Roma, the Sinti and other groups at the hands of the Axis (and associated) powers. No one, then and now, would doubt what was committed was 'genocide'. In fact, the popular conception of genocide emanates from that very horrific, historical memory; annihilation of a large number of people.

But, of course, that is not what genocide is precisely. To take the popular conception, we might suggest that it is not just the annihilation or destruction of a large number of people but a particular group of people. You might also consider that those people were specifically targeted for annihilation. You might then reasonably think that an intent to annihilate may not immediately manifest or follow; and you might add other considerations.

Formal definition of genocide

That brings me to the formal definition of genocide: the commission of prohibited acts, with an intent to destroy, in whole or in part, a national, racial, religious or ethnic group. In contrast with the considerations outlined immediately above, the formal definition is not only precise but deliberately exhaustive. There are only five prohibited acts - no others - which are loosely speaking: killings; serious bodily mental harm, conditions of life calculated to destroy; measures intended to restrict births; and transfer of children from one protected group to another. There are only four protected groups - no others. States did not wish to include social groups, political groups, cultural associations and so on. Not least because some of those States may themselves have fallen foul of the newly crafted law. Each of the terms within the definition have been further defined although they are still subject to legal contestation. The definition has developed through interpretation of the Genocide Convention, clarification in other international / domestic instruments, and, principally, by jurisprudence emanating from the United Nations International Criminal Tribunals for Rwanda and the former Yugoslavia (UN ICTR and UN ICTY).

We ought to remember that the very first convictions for genocide were not, contrary to popular belief, at the Nuremberg Trials. The concept was still too controversial, misunderstood and the processes/procedures at Nuremberg too far removed from modern conceptions of justice (and the law for that matter). It was not until 1998 when the UN ICTR convicted Jean Paul Akeyasu for genocide. It was not until 2001 that the UN ICTY convicted General Krstic for genocide in Srebrenica.

Responsibility under the Genocide Convention

This brings me to the question of responsibility. The Genocide Convention creates a dual responsibility upon both individuals and States. Art III states the following acts are punishable: genocide; conspiracy to commit genocide; direct and public incitement to commit genocide; attempt to commit genocide; complicity in genocide. It is easy to see how those acts might apply, like most crimes, to individuals. Some may recall that famous line in the 1947 Nuremberg Judgment when it was argued that international law concerns the actions of sovereign States not individuals. The Court replied: "crimes against international law are committed by men not by abstract entities". Indeed, that statement rings true still today and still perpetrators are predominantly men. By contrast, in the case of Bosnia v. Serbia, the Serbian State argued the exact opposite; that individuals commit crimes not States (International Court of Justice (ICJ), Judgment, 2007). You may ask, how does a State form intent to commit genocide and, therefore, how can it be responsible?

Responsibility under the Genocide Convention is broad and expansive:

• States can have attributed to them the acts of its agents, organs and officials and/or complicity by them in the acts of others;

• States have a duty to prevent genocide;

• States have a duty to punish perpetrators of genocide;

• States have a duty to enact the necessary legislation to give effect to the provisions of the Genocide Convention and to provide effective penalties for persons guilty of genocide.

Commitment to end genocide

That brings me to the heart of the presentation. Since 1947 when the Nuremberg Judgment was handed down, indeed since 1948 when the Genocide Convention was adopted there have been only two contested cases at the ICJ i.e. where one state (the apparent injured party) brings another before the Court submitting that it has failed in its duty to interpret, apply or fulfil its obligations under the Genocide Convention (in accordance with Art IX). Furthermore, many powerful States maintain reservations on allowing another State to bring it before before the ICJ if it were to fail in discharging its duties and obligations. Yet, there are two considerations. First, the prohibition on the commission of genocide is a peremptory norm of international law i.e. it is a crime so heinous that it is not just part of treaty law but also customary international law. No country may derogate from the prohibition; it is absolute. Second, the Genocide Convention is clear as is the jurisprudence; the prohibition on genocide is characterised as erga omnes and erga omnes partes i.e. it is so fundamental that each State owes a duty to each other and the world at large to not commit genocide, to prevent it, and to punish it.

Failure of the 'international community'

Despite the broad State responsibility, there are three issues arising. First, only one State has ever invoked the duty owed to the world at large by bringing an action against another State though it is not an 'injured' party itself (Gambia v. Myanmar, Application to ICJ, 2019). Second, never has the UN Security Council invoked Chapter 7 to attempt to hold a State accountable for genocide. Third, never have the five organs of the UN, its 15 specialised agencies, and one related body ever invoked the Special Procedure available to it to request an Advisory Opinion on the question of genocide in a particular country.

Yet, (alleged) genocides continue to be committed. We ask how many not when. We say, rhetorically it seems, 'never again'. We wonder when genocide has been committed and individuals charged and convicted: how exactly were they able to do so given the duties of States under the Genocide Convention; how, in particular, without the power and machinery of a State. States which are the drafters, the parties and the duty-bearers of all international instruments. States who command sole authority, power and discretion to use lawful force or sanction legitimate (they would argue) violence both domestically and internationally. To carry out genocide, almost in all cases, you need a State to act or omit to act when necessary; hence the duty to prohibit, prevent and punish genocide under the Genocide Convention.

Conclusions and beginnings

I have two concluding reflections. First, States not only have a legal interest, but a moral and ethical imperative, to ensure that the peremptory norms of general international law (and, principally, the prohibition on genocide) are upheld and that obligations owed to the international community as a whole - prohibition, prevention, and punishment - are enforced. Second, for the prohibition of genocide to have any meaning at all - not least for victims and survivors of rights violations or crimes - humanity must act in concert, through their State representatives, to ensure rights are interpreted, applied and fulfilled without reservation. Each of us ought to hold our State representatives to account. The lessons of the heinous crimes suffered by those in Bosnia and Herzegovina, and in particular the Bosnian Muslims of Srebrenica 25 years ago, ought to be more than enough for us to take heed and reaffirm our commitments.

This is the text of a speech delivered by Aarif Abraham at the Geoffrey Nice Foundation Master Class on “Post-Transitional Justice following Genocide in Bosnia and Herzegovina: 25 years after Srebrenica”. Aarif Abraham is Barrister specialising in international criminal and human rights law at Garden Court North Chambers. Details of the Master Class can be found here. This post was originally published on LinkedIn Pulse here.