Shane Hensinger

On State vs. Individual Responsibility for Genocide

Genocide in the Modern Age
Wagner Graduate School of Public Service – New York University
January 13, 2007
This paper will examine the issues surrounding the role and responsibility of a state for
genocide – moving beyond the language of the Genocide Convention (individual
responsibility) into an area recently illuminated by an International Court of Justice
opinion on state responsibility for genocide by parties to the Balkan conflicts of the
1990s.

Drawing on the experience of the trials of Axis defendants at Nuremberg and because
there had not previously existed a treaty forbidding the planned extermination of an entire
race or group of people, the United Nations in 1948 agreed upon the Convention on the
Prevention and Punishment of the Crime of Genocide. Signers to the convention, which
by 2006 numbered more than 138, pledged their nations to honor the treaty and the
phrase “never again,” which referred to the Nazi Holocaust perpetrated against the Jews,
became a regular part of international diplomatic language.

The United States ratified the treaty in 1988 (after signing it in 1948) which meant it was
bound to uphold the language of the treaty, specifically Article 1 which states: “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 4 goes further and states “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.”

Because the United States had not ratified the treaty prior to 1988 it was not legally
bound by the treaty’s language on the prevention and punishment of genocide. After
ratification the US became bound by the language of the treaty yet failed to act in cases
of genocide in the Balkan Wars during the 1990’s as well as the Rwandan Genocide in
1994.

In the case of the Balkans when former Secretary of State Warren Christopher was asked
under oath if genocide had occurred in Bosnia-Herzegovina he answered: “There’s no
doubt in my mind that rape and ethnic cleansing and other almost indescribable acts have
taken place and it certainly rises to the level that is tantamount to genocide. The technical
definition is not perhaps what’s important here, but what is important is that it is atrocious
conduct, it is an atrocity and it must be stopped” (Powers 298).

In the case of Rwanda the United States was wary, early on in the crisis, of using the term
“genocide” to describe what was happening in Rwanda. The evidence of this is clear as a
discussion paper on Rwanda circulated between the US Department of Defense and the
State Department contained this language:

1. Genocide Investigation: “Language that calls for an international investigation of

human rights abuses and possible violations of the genocide convention. Be
Careful. Legal at State was worried about this yesterday – Genocide finding
could commit [US Government] to actually ‘do something” [emphasis added].

Furthermore in a news conference the spokeswoman for the US State Department, when
asked for comment on whether Rwanda was genocide, said this: “Well, as I think you
know the term “Genocide” has a very precise legal meaning. Before we begin to use that
term we have to know as much as possible about the facts of the situation, particularly
about the intentions of those who are committing the crimes…”

In both cases the United States was wary of committing itself to using the term
“genocide” for fear it would then be legally obligated to act, under the relevant articles of
the Convention on Genocide, to halt the genocide occurring in either country.

Rwanda and Bosnia are used as examples because both events occurred after the United
States ratified the Convention on Genocide. But in the period between 1948 and the
ratification of the Convention by the United States there have been numerous acts of
genocide which the treaty has not stopped: Cambodia in 1975-1979, Kurds and Marsh
Arabs in Iraq in the 1980s & Burundi in 1972. Is the Genocide Convention relevant or
because of the unwillingness of its signatories to enforce its rules has the Convention
become archaic and useless?

One answer is that the Convention, for all of its shortcomings, does allow a legal
framework by which a state damaged by genocide can seek justice using the framework
of international justice and law.

On February 26, 2007 the International Court of Justice at The Hague issued a ruling in a
case brought by Bosnia-Herzegovina against Serbia charging Serbia with violations of the
Genocide Convention.

The court found that “as a matter of 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. The Court observes that the
obligation for which the Respondent may be held responsible, in the event of breach, in
proceedings under Article IX, is simply an obligation arising under international law, in
this case the provisions of the Convention, and that the obligations in question 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.” (ICJ
“Summary” 4)

It goes on to say: “The nature of the Convention is such as to exclude from its scope State
responsibility for genocide and the other enumerated acts. The Convention, it is said, is a
standard international criminal law convention focused essentially on the criminal
prosecution and punishment of individuals and not on the responsibility of States.
However, the Court sees nothing in the wording or the structure of the provisions of the
Convention relating to individual criminal liability which would displace the meaning of
Article I, read with paragraphs (a) to (e) of Article III, so far as these provisions impose
obligations on States distinct from the obligations which the Convention requires them to
place on individuals” (ICJ “Summary” 4)

In finding that a state can be held responsible, but not criminally, for breaches of the
Genocide Convention the ICJ then moved into the area of accountability for the genocide
which occurred in Bosnia-Herzegovina.

Using its 1986 judgment in the case Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), which goes on to state “persons,
groups of persons or entities may, for purposes of international responsibility, be equated
with State organs even if that status does not follow from internal law, provided that in
fact the persons, groups or entities act in “complete dependence” on the State, of which
they are ultimately merely the instrument.” The court states that it cannot “find that the
persons or entities that committed the acts of genocide at Srebrenica had such ties with
the FRY (Serbia) that they can be deemed to have been completely dependent on it.”

The judgment goes on to find “Serbia had not committed genocide, through its organs or
persons whose acts engage its responsibility under customary international law, in
violation of its obligations under the Convention on the Prevention and Punishment of the
Crime of Genocide” (ICJ “Summary” 8). The court found further than Serbia had not
violated its obligations under the Genocide Convention in conspiring to commit genocide
and had not been complicit in genocide.

The court did find that Serbia had violated its obligations under the Genocide Convention
to prevent genocide in Srebrenica, Bosnia and by refusing to transfer indicted war
criminal Radko Mladic to The Hague Serbia was further violating its obligations under
the terms of the Genocide Convention.

On the face of it this decision reads as a defeat for Bosnia. The court found, by a vote of
13-2, that Serbia was not complicit in the genocide in Bosnia. By not being able to tie the
leadership of Serbia directly to the genocide in Bosnia the court found it could not hold
the Serbian state guilty of genocide. In that sense Serbia was victorious but in finding that
Serbia violated its obligations to prevent genocide under the Genocide Convention the
ICJ handed a victory to Bosnia and added a new page to international jurisprudence and
understanding of genocide in the modern age by finding, for the first time, that a state
could be held responsible for breaching its obligations under the Genocide Convention.

By holding that Serbia had violated the genocide convention by failing to prevent acts of
genocide in Bosnia the ICJ gave hope that the Genocide Convention can be viewed as a
living and relevant document which has the flexibility to provide redress despite the
failure of its signatories to prevent genocide from occurring during the past 60 years.