Genocide

• Author: International Law Group
• Pages: 25-28

Page 25

Of the several parties in the region who might be parties, the fi fteen-member International Court of Justice (ICJ) concludes that the Republic of Serbia is, as of the date of the present Judgment, the only Respondent. Any responsibility for past events determined in its Judgment involved at the relevant time the State of Serbia and Montenegro.

As to its jurisdiction, the ICJ had already decided that it had jurisdiction in the present case in its Judgment on preliminary objections of July 11, 1996, and fi nds that this decision constituted res judicata. i.e. was not open to re-examination except by way of revision under Article 61 of the Statute.

The Court notes that the Respondent already applied for revision of the 1996 Judgment in 2001 and that the Court dismissed this Application in a Judgment of February 3, 2003. The Court accordingly affirms its jurisdiction to adjudicate upon the dispute.

The Court first points out that its jurisdiction rests solely on Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 (the Convention). Thus, the Court only has the power to rule on alleged breaches of obligations imposed by the Convention, and not on breaches of other obligations under international law, such as those protecting human rights in armed confl ict, even if these breaches are of peremptory norms, or of obligations that protect essential humanitarian values.

The Respondent first argued that "the Genocide Convention does not provide for the responsibility of States for acts of genocide". After examining all the relevant Convention articles, the Court concludes that the duty of States to prevent genocide under Article I of the Convention necessarily implies a ban against States themselves committing genocide.

Therefore, if an organ of the State, or a person or group whose acts are attributable to the State, commits an act of genocide or a related act set forth in Convention Article III , the State will incur international responsibility. Moreover, the Court can fi nd States responsible for genocide, or for complicity in genocide, even if a competent court has not previously convicted any individual of that crime.

The Convention requires that, for particular acts to constitute genocide, the perpetrator must have done the acts with the intent to destroy the protected group, in whole or in part. Herein lies an important distinction between genocide and "ethnic cleansing". While a perpetrator can carry out "ethnic cleansing" simply by displacing a group of persons from a specifi c area, genocide requires that these actions be done with the specifi c intent to destroy all or part of the group.

Furthermore, the Court must be able to define the targeted group by specifi c positive characteristics-national, ethnic, racial or religious -and not by the lack of them. It therefore rejects the negative definition of the group advanced by the Applicant as the...