5.1 General Considerations
5.1.1 The duties to prevent and punish in the Genocide Convention and under customary international law
5.1.1.1 Two distinct duties
The prevention and punishment of genocide are stated objectives of the Genocide Convention. Article I of the Convention demands contracting parties to prevent and punish acts of genocide in order ‘to liberate mankind from such an odious scourge’. In so doing, the Convention made preventing and punishing acts of genocide obligatory and not just optional.
Whilst the two obligations are connected and are mutually supportive, they are legally distinct. A state could therefore be held responsible for failing to comply with either or both of these obligations.
5.1.1.2 Customary law status of duties
The duties to prevent and punish genocide are now part of customary international law and are therefore binding even without any conventional obligation. As a result, they are binding on all states, including states that are not a party to the Genocide Convention.
What a state might be required to do in a given case to fulfil those obligations will depend on the specific circumstances of that case and in particular, whether the state is the territorial state or another state and what relationship it has with the perpetrators.
5.1.1.3 Timeliness and diligence in fulfilment
The requirement that a state takes steps to prevent or punish genocide obligates that state to act in a timely and diligent fashion in order to preserve the interest of the international community to prevent and punish such crimes. A state is therefore expected to fulfil these obligations as soon as it acquires information pertaining to commission or risk of commission of such acts by agents of that state or of an individual over whom it has influence. The state must then act in a manner commensurate to the gravity of the crimes and must do so effectively, so as to fulfil the dual purposes of the Convention. Practical considerations, such as financial limitations, would not, in principle, provide a justification for a failure to act. Nor could a state evade its obligations to prevent and punish by referencing its own internal laws or institutional practices. Instead, pursuant to Article V of the Convention, contracting parties are required to enact the legislation necessary to give effect to the Convention and, in particular, to provide effective penalties for persons guilty of genocide or of any of the other acts enumerated in the Convention.
The two obligations—to prevent and to punish genocide—must be interpreted within the broader framework of international law so that the fulfilment of these obligations would not authorize a state to violate other international obligations. In other words, a state is not authorized to violate international law in order to fulfil those obligations. Within that general framework, states enjoy some discretion regarding the way in which they fulfil their obligations to prevent and punish genocide.
5.1.1.4 Erga omnes obligations
These obligations are held erga omnes so that each state has an interest in compliance. By virtue of its membership in the international community, every state has a legal interest in ensuring respect for these obligations and an associated legal entitlement to demand and, if necessary, to seek to impose respect for them. As noted by the International Law Commission, this must perforce reflect a broader conception of the notion of state responsibility as it implies a right and obligation held towards the intentional community as a whole. In that sense, the obligations to prevent and to punish genocide are held not by states individually as their own interest, but collectively as the common interest of all. They are also generally understood to be absolute in character.
As noted, supra, at 3.6.2, there is also support for the view that these duties are of jus cogens nature so that an exception could only be made to them pursuant to a norm of the same standing.
5.1.2 Those bound by the duties
5.1.2.1 States but not individuals
The obligations to prevent and punish genocide are primarily, but not necessarily exclusively, those of states. In contrast, these obligations are not binding on individuals, whose responsibility under the Convention is separately regulated in Articles II and III of the Convention.
5.1.2.2 Which states?
These duties are binding on all states, though not necessarily in the same way for all of them, as will be made clear. What is required of a state in a given case is dependent on the circumstances of that case and whether the state in question is the territorial state or not. The duty to prevent acts of genocide is not limited to the territorial state. Instead, when there is a serious risk that genocide will be committed, the duty applies to any state that knows or should have known of that risk and that has the power to influence the perpetrators of such acts.21 This would include any state that ‘has it in its power to contribute to restraining in any degree the commission of genocide’.
Regarding the duty to punish, two different sub-elements of that duty must be distinguished. In its strictest sense—the exercise of jurisdiction to prosecute such an act—the duty to punish, is binding under the Convention and customary law only on the territorial state. In its broader sense, which encompasses non-prosecutorial obligations to contribute to the punishment of acts of genocide, the duty to punish might also have implications for a non territorial state that has influence over the perpetrators and, due to this influence, can contribute to the punishment of acts of genocide. That was the case, for instance, in relation to Serbia-Montenegro; the International Court of Justice (ICJ) found that Serbia-Montenegro failed to comply with its obligation to punish because it failed to cooperate with an international penal tribunal to arrest an individual for acts of genocide committed by its political and military allies in neighboring Bosnia-Herzegovina.
5.1.2.3 Non-state armed groups
5.1.2.3.1 The Convention
There is no question that members of non-state armed groups are bound individually to refrain from any act listed in Articles II and III of the Convention and could be held criminally responsible if they violate those prohibitions. However, the Convention does not specify whether the groups themselves are bound by the duties to prevent and punish genocide. As a treaty of the 1940s, the absence of a provision to that effect is not surprising and reflects the general focus of international instruments of that time on states. But like other instruments of that era, there are good reasons to think that the law may have evolved and that non-state armed groups are now required to prevent and punish acts of genocide committed by their members.
5.1.2.3.2 Customary international law
The suggestion that customary international law might require certain categories of non-state armed groups to prevent and punish acts of genocide by their members or by those over whom they have influence is supported by a number of considerations. First, the effectiveness of the prohibition on genocide would be greatly diminished if international law failed to require non-state actors to prevent and punish genocide by their members. Conversely, requiring such groups to abide by these obligations would constitute a significant disincentive to the commission of crimes by their mem¬ hers and thus serves an important preventive function. Policy considerations of effectiveness are not, however, sufficient on their own to warrant a conclusion that those norms are now binding on non-state actors.
Second, these two obligations are peremptory norms binding on all and in respect of all, that is, erga omnes. Their binding force derives not from the individual commitment of states but from the value which the international community attaches to the underlying protected interests, in particular, the protection of groups from attempts to destroy them. The concern of the international community for the effective protection of these interests does not, therefore, depend on the identity of those threatening them. To convince oneself of the validity of that view, one only needs to consider the alternative: not requiring non-state armed groups to be bound by the duties to prevent and punish genocide would effectively authorize genocide by their members and would allow these groups to maintain a state of general impunity in relation to such crimes within their ranks. The creation of such a normative vacuum would plainly be contrary to the goals of the Convention. It also would be demonstrably contrary to relevant legal principles arising from the law of command responsibility. Command responsibility is a doctrine recognized by customary international law, pursuant to which a superior—military or civilian—may be held criminally responsible if he culpably fails to take necessary and reasonable measures to prevent or punish crimes of subordinates. These obligations apply to a superior whether he is a de jure or de facto superior and whether he belongs to a legally recognized structure or not. As part of the requirement that commanders must adopt measures to prevent and punish crimes of subordinates, the law of command responsibility provides that to fulfil these duties, a superior can rely upon the structures and organs of the entity to which he belongs. Thus, for instance, where the superior is not himself competent to investigate allegations of crimes, his duty to punish obliges him to submit the matter to the competent investigative authorities of that structure. This highlights the fact that there is a legally sanctioned expectation that the organs and resources of a state or non-state entity to which the superior belongs will be made to contribute to the fulfilment of his obligations to prevent and punish crimes by members of that state or entity. This, in turn, may be read as an acknowledgment that any group whose members are involved in the commission (or risk of commission) of international crimes, including genocide, bears an implied responsibility to contribute to the prevention and punishment of such crimes.
Third, one can draw an analogy here to the way in which certain norms of international humanitarian law and human rights law came to be regarded as applicable to and binding upon non-state actors. The International Committee of the Red Cross (ICRC) Commentary to common Article 3 of the Geneva Convention notes that the exact process by which common Article 3 came to bind entities that are not High Contracting Parties to the Geneva Conventions is the subject of some debate.33 Whilst the theories have indeed varied in explanation of that expansion (e.g., delegation of sovereign authority; applicability through domestic law; third-party legal obligation created by treaty; doctrine of implied consent; doctrine of legislative jurisdiction), the principle that this provision is binding on non-state actors is now beyond dispute.
The underlying justification for such expansion revolves around two key considerations: (i) the rules and principles reflected in common Article 3 (and Additional Protocol II) are fundamental humanitarian principles; and (ii) their effective protection requires strict compliance by all those capable of violating them. These same core considerations would of course apply to the prohibition on genocide and would militate in Favour of the view that this prohibition and the associated obligations also apply to these groups. The same conclusion could be reached by considering the way in which human rights norms migrated from states to non-state actors, in particular in regards to conduct that may otherwise constitute international crimes.
These considerations lead to the reasonable conclusion that certain non-state actors could, therefore, be bound by the duties to prevent and punish acts of genocide. In Kadic v. Karadzi6t for instance, the United States Court of Appeals for the Second Circuit thus held (albeit in a civil case) that the law on genocide was equally binding on state and non-state actors. Echoing the same general position, the United Nations and others have issued repeated official statements effectively confirming that Daesh was responsible for acts of genocide against certain communities in Iraq and Syria.
However, the issue turns on whether all, or only some non-state actors would be bound to prevent and punish acts of genocide. Common Article 3 only applies to those (non-state) entities involved as parties in a non-international armed conflict. Additional Protocol II sets even stricter requirements of territorial control and organization for such a group to be subject to its terms; the law of command responsibility only becomes relevant to a de facto organization if and when (i) control can be exercised hierarchically through that structure, and (ii) members of that entity commit or are about to commit crimes. In all these cases, the ratio for the application of legal prohibitions to non-state actors is the real risk that violations of the law may otherwise be committed by members of the organization or group in question and that there is in place, within that organization or group, the means to control the actions of its members to prevent or punish such acts. Adopting that same logic here, it is arguable that the obligations to prevent and to punish genocide would only apply to those non-state armed groups which are sufficiently organized so that hierarchical control can be exercised through its ranks to enforce discipline and punish crimes of its members.
The value of these obligations applying to non-state armed groups would be first and foremost preventative in nature as there would be little remedy to hold such organizations accountable for failing to prevent or punish the genocidal acts of their members.
5.1.2.4 International organizations
The peremptory nature of the offence of genocide and of its associated duties to prevent and punish militate in favor of the view that those duties are binding in principle on international organizations. Addressing this issue in general terms, the International Law Commission noted that ‘despite a personality which is in some respects different from that of the States Parties to such treaties [establishing an international organization], [international organizations] are nonetheless the creations of those States. And it can hardly be maintained that States can avoid compliance with peremptory norms by creating an organization? The application of this view to the peremptory duties to prevent and punish genocide would, on that view, lead to the conclusion that international organizations are bound by those duties and must enforce them where they could influence the perpetrators.43 This logic underlies the suggestions made by a number of official bodies that the United Nations failed in its duty to prevent genocide in Rwanda though being able and, per force, required to do so.
5.1.2.5 The UN Security Council and the UN General Assembly
5.1.2.5.1 The UN Security Council
The practice of the United Nations Security Council testifies to the fact that the commission of serious violations of human rights and humanitarian law, of which genocide is a particularly egregious expression, could constitute a threat to international peace and security.45 It has been convincingly argued that where international peace and security is being threatened by the (possible) commission of such acts, the Council is under a legal duty pursuant to Article 24 of the UN Charter to take reasonable steps to prevent the commission of such acts and is thus authorized to adopt legally binding enforcement measures/6 Any such situation, which represents a threat to peace under Article 30 of the Charter, would trigger the primary responsibility of the Security Council under Article 24 for the maintenance of international peace and security, and its ensuing duties under paragraphs (1) and (2) of that provision. It is in such situations of threats to peace resulting from the commission, or risk of com¬ mission, of genocide, crimes against humanity, and/or war crimes that the Security Council would have, as Article 24(2) of the Charter puts it, an obligation to ‘discharge its duties’ by adopting adequate measures to respond to those.
The relevant legal regime necessarily implies that a great deal of discretion is given to the Council to decide which measures would be appropriate in such circumstances. However, it would forbid inaction by the Council and, arguably, would regard measures which are clearly and evidently incapable of preventing or punishing acts of genocide as insufficient to meet those obligations.
Its practice suggests that where the Council is made aware of the real risk of commission of acts of genocide, it is empowered and required, at the very least, to condemn such acts, to remind the authorities concerned of their responsibility to protect their population from such crimes, and to request those authorities to desist from such conduct. Where such acts have already been committed, that duty would also arguably require the Council to put into place an accountability mechanism to prevent impunity for such acts, in particular where the territorial states fails to act. It may also authorize the use of United Nations resources for the purpose of investigating such crimes. Ultimately, where justified, the commission of acts of genocide would permit the Council to use force to fulfil its obligation to pre¬ vent or stop such acts.
5.1.2.5.2 The UN General Assembly
The position and responsibility of the UN General Assembly (UNGA) is more complex in this respect. There are indications that the General Assembly would have the competence and authority to intervene to try to prevent or punish genocidal acts if and when the Security Council fails to fulfil its primary responsibilities in relation to the maintenance of peace and security. This is apparent already from the ‘Uniting for Peace’ resolution of the UNGA. This resolution effectively acknowledged the General Assembly’s alternative and residual competence in matters of maintenance of inter¬ national peace and security when the Security Council is not fulfilling its primary responsibilities under Article 24 of the Charter. The resolution led to the establishment of a ‘peace observation commission’ to report on the situation in any area where there existed international tension and a ‘collective measures committee’ to advise on appropriate measures to be used to maintain and strengthen international peace and security. The General Assembly followed that precedent in a number of other situations where acts of aggression, rights abuses or violations of the laws of war were at stake and where the Security Council was unable or unwilling to act.58 Particularly interesting in the present context is UN General Assembly resolution 71/248 (2016) establishing an investigative mechanism for crimes committed in Syria since March 2011. The mechanism was specifically tasked to collect, consolidate, preserve, and analyse evidence of violations of international humanitarian law and human rights and prepare files in order to facilitate and expedite fair and independent criminal proceedings. It is perhaps the clearest expression of the UNGA’s subsidiary and residual competence in matters of accountability for international crimes, including genocide. Whether this course was taken by the General Assembly as a result of a sense of legal obligation or out of practical necessity is unclear. However, these precedents provide at the very least support for the proposition that where the Security Council fails to meet its obligations under Article 24 of the Charter and that such crimes are about to be committed or have been committed, the UN General Assembly would be authorized under the terms of the Charter to intervene to seek to prevent and punish those crimes.
5.1.2.6 Prosecutors
The obligation to punish does not create an independent international obligation binding on national (or international) prosecutors to prosecute acts of genocide where evidence of their commission exists. Prosecutors have, in most legal systems, a great deal of discretion in deciding whether or not to initiate a criminal investigation or to commence prosecution. The law of genocide does not affect that discretion. However, a state would fail to fulfil its international obligations where its prosecutors systematically or demonstrably exercise their discretion in an unreasonable fashion in order to evade its responsibility to punish and thereby contributes to creating impunity for acts of genocide.
5.1.3 Duty to punish under the ICC regime
Paragraph 6 of the Preamble of the Rome Statute recalls that ‘it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’. Some have interpreted this as an acknowledgement of a pre-existing legal obligation to punish all relevant categories of international crimes.64 Instead, putting aside the case of genocide, it is better characterized as a contribution to an evolving principle that is yet to crystallize fully for other international crimes. The preambular statement does not create a jurisdictional authorization upon which state parties can rely to prosecute the statutory crimes. Nor, stricto sensu, does it create a legal obligation in the sense that a failure to act would engage that state’s responsibility. The Rome Statute must be read as expressing a general, collective, commitment to seeing that these crimes are punished and enjoining every state party to take steps to contribute to that common purpose. If, however, a state fails to exercise its (primary) jurisdiction over International Criminal Court (ICC) crimes that fall within its competence, the consequence of this would be that the Court could then seize itself of the matter in accordance with its (subsidiary) competence.
5.2.1 General considerations
The duty to prevent genocide is perhaps the more fundamental of the two duties foreseen by the Convention. It requires states to take all necessary steps to try to avoid or stop the commission of such crimes. The overarching goal of prevention built into the Convention is apparent not just from this obligation, but also from the criminalization of a number of preparatory acts that fall short of genocide.
5.2.1.1 Genocide as precondition
A state can be held responsible for breaching its obligation to prevent genocide only if an act of genocide has actually been committed. Lest the very purpose of that duty be defeated, this does not mean, however, that a state is not required to act until such crimes have actually been committed. Nor does it mean that a requirement of causality must be established between the failure to act and the commission of acts of genocide. Instead, such a duty exists and must be effectively enforced as soon as the state is on notice of the real possibility that acts of genocide might be committed or, in the terms of the ICJ, ‘at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed’. The failure of a state to do so after it was put on such notice might trigger its responsibility, even if time then elapses before crimes are committed. That duty continues to exist as long as acts of genocide continue to be committed or when there is a real risk of their being committed. Responsibility for a failure to prevent genocide could not arise, however, unless acts of genocide are actually committed. In other words, the law of genocide does not provide for any sort of inchoate state responsibility.
The duty to prevent requires a state to prevent not just genocide stricto sensu, but any kind of punishable acts listed in Article III of the Convention. The failure on the part of a state to prevent any of these acts could, therefore, engage its responsibility, if all other conditions are met.
5.2.1.2 Who is bound by the obligation to prevent?
The obligation to prevent genocide is binding on the territorial state but not only on that state. It would also bind, in a given case, any state that is ‘in a position of influence’ vis-a-vis the perpetrators of such acts, that is, any state with ‘the capacity to influence effectively the action of persons likely to commit, or already committing, genocide’. This capacity to influence in turn depends on a number of factors, which might include, for instance: (i) the geographical distance of the State concerned from the scene of the events; (ii) the strength of the political links with the relevant entity; (iii) links of other kinds between the authorities of that State and the main actors in the events; (iv) the particular legal position of that state vis-A-vis the situations and persons facing the danger of genocide; (v) the military, intelligence, and logistical sup¬ port provided by the state to that other actors; (vi) the alignment and overlap of their political and military agendas; (vii) the strength of the political, military, and financial links between the two states; and (viii) other factors that might reflect a capacity to restrain those intent on committing acts of genocide. The case between BosniaHerzegovina and the Federal Republic of Yugoslavia (FRY) before the ICJ offers a clear illustration of how that evaluation is to be carried out. In its Order of 8 April 1993, the Court stated that although unable at that stage in the proceedings to make ‘definitive findings of fact or of imputability’, it determined that the FRY was required to ensure ‘that any military, paramilitary or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control, direction or influence, do not commit any acts of genocide, of conspiracy to commit genocide, of direct and public incitement to commit genocide, or of complicity in genocide’. This language, the Court explained, makes it clear that the duty to prevent may reach beyond those whose conduct could be attributed to the state in question.
Therefore, the presence of information suggesting the commission (or the risk of commission) of genocidal acts combined with the capacity to restrain and influence those planning, preparing, or perpetrating such acts would require a state to take steps to prevent such acts. Where that capacity has been established, the nature, extent, and depth thereof will in turn be relevant to the question of reparation insofar as it requires a determination of that state’s contribution to the wrongful act of genocide.
5.2.1.3 An obligation of means
The obligation to prevent genocide is an obligation of means rather than result.82 For a state to be held responsible for breaching that obligation, it does not therefore need to be proven that the state concerned could actually have prevented the genocide or that its failure to act was causally linked to the commission of an act of genocide. It is sufficient that it had the means to contribute to that goal and that it manifestly refrained from using them.83 Where established, the causal relationship between the state’s failure to act and genocidal acts would be relevant, however, to the question of the nature and extent of reparation borne by a state as a result of its wrongful conduct.
5.2.1.4 Duty to prevent whose actions?
As noted by Judge Lauterpacht, the duty to prevent is an obligation ‘that rests upon all parties and is a duty owed by each party to every other. This network of duties is matched by a network of correlative rights [ … ]’. The duty to prevent genocide therefore exists not just in relation to state officials, organs of the state, or entities whose conduct could be attributed to the state but also in relation to all those with whom the state maintained close links and on which it could exert influence and who threaten to commit acts of genocide. Furthermore, the responsibility to prevent is not limited to the actions of nationals of the state in question or to its officials. It is general in character and restricted only by the ability of the state in question to influence the perpetrators of acts of genocide or those threatening to commit such acts.
5.2.1.5 Geographical scope of application
The obligations of states to prevent (and to punish) the crime of genocide is not territorially limited by the Convention.88 Stated differently, there is an obligation to prevent genocide that extends beyond the jurisdiction of a contracting state. It can therefore apply extra-territorially. The 2007 ICJ judgment in the Bosnia v. Serbia case provides an illustration of the extra-territorial effect of that obligation. The Court found that Serbia-Montenegro had breached its obligation to prevent genocide through a failure to intervene with its ally, Bosnian Serb authorities and forces in the neighbouring state of Bosnia-Herzegovina, in order to exercise influence over them to stop and prevent acts of genocide. The judgment therefore stands as precedent for the view that the obligation to prevent can apply beyond and regardless of the borders of a state. The limits to that obligation are set, not by borders, but by the actual capacity of the state in question to influence the perpetrators of acts of genocide.
5.2.2 Elements of the duty to prevent
5.2.2.1 Punishment no alternative to prevention
The duty to prevent is an independent and distinct obligation that attaches to the general prohibition on genocide. As such, it cannot be reduced to a requirement of punishment as a way to deter and prevent future crimes.93 Punishing the perpetrators is therefore no alternative to the duty to prevent and a state could be held responsible for a failure to fulfil its duty to prevent even where it later punished perpetrators of such acts.
5.2.2.2 Duty of diligence
The duty to prevent genocide requires the state to act diligently in the fulfilment of that obligation. The extent of this diligence is dependent on the particular circumstances of the case and, most importantly, on the capacity of the state in question effectively to influence the action of persons likely to commit, or already committing, genocide. This capacity will in turn be determined by a number of the aforementioned factors. It is irrelevant whether the state whose responsibility is at stake claims, or even proves, that even if it had employed all means reasonably at its disposal, these means would not have prevented the commission of genocide. This is because its responsibility is based not on a failure to succeed, but on a failure to try.
5.2.2.3 Content of duty
5.2.2.3.1 Duty to refrain from contributing to acts of genocide
What the duty to prevent requires in concrete terms is not entirely clear from the Convention or the travaux.” The jurisprudence offers better guidance. First, and at its most basic, the duty to prevent genocide includes an obligation to refrain from any sort of assistance or support to the commission of acts of genocide.100 As noted by the ICJ.
[i]t 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.
The duty to prevent genocide also requires a state to ensure that any military, paramilitary, or irregular armed units which may be directed or supported by that state, as well as any organizations and persons which may be subject to its control, direction, or influence, do not commit any acts of genocide, of conspiracy to commit genocide, of direct and public incitement to commit genocide, or of complicity in genocide.
5.2.2.3.2 Duty to adopt all measures
The duty to prevent genocide requires a state to adopt all measures as are within its power that could reasonably contribute to preventing the genocide. In other words, the state is expected to do its best to prevent the commission of such crimes.
5.2.2.3.3 Referring of issue to the UN is insufficient
The duty to prevent genocide is not limited to referring an issue of concern to the competent organs of the United Nations, as is possible under Article VIII of the Convention. Thus, even when UN organs have been called upon to intervene by a state, that state is not relieved of its obligation to take all such measures as are within its competence to prevent acts of genocide. In other words, when under a duty to act to prevent genocide, that duty is not extinguished by a referral to the United Nations.
5.2.2.3.4 Duty to stop and suppress
When a state is required to act because it has influence over the perpetrators, the duty to prevent would imply an obligation to suppress any ongoing acts of genocide, in particular by suppressing such acts and, for the territorial state, arresting and prosecuting suspects if it is in a position to do so. That duty also encompasses a general obligation to refrain from conduct that would inhibit the ability of another state to prevent genocide or to resist it if its population is being targeted.
5.2.2.3.5 Duty to protect one’s population
As apparent from the practice of the UN Security Council, the duty to prevent genocide requires a state to take all necessary measures to protect its own population and any member thereof from the risk of genocide.
5.2.2.3.6 Unilateral countermeasures
Any state other than the injured state is entitled to invoke the responsibility of another state provided the obligation is owed to the international community as a whole, that is, an erga omnes obligation such as the duty to prevent (and punish) genocide. It is less clear whether, in the fulfilment of its obligation to prevent genocide, a state could resort to unilateral countermeasures in the collective interest of the international com¬ munity. Considering the gravity of the acts, the absolute character of the duty to prevent genocide, and the fact that the interests at stake could hardly be repaired by a post facto finding of responsibility on the part of the state concerned, there are good grounds to argue that international law would allow a state to adopt unilateral countermeasures to prevent acts of genocide. A different view would effectively sanction a right of inaction on the part of states in the face of genocide and, worse, could create a clear incentive not to act. The position seems all the more appropriate that the ICJ has made it clear that a state carries a duty to prevent genocide in relation to those over which it may exert influence and the Court made no exception for the case where the latter are state officials or where that influence can be exercised through countermeasures. In that sense, countermeasures taken in such a situation would ultimately be directed at those who make use of the state apparatus and its resources to commit acts of genocide. The possibility of adopting countermeasures—whether characterized as ‘lawful measures’ under Article 54 of the ILC Draft Articles or as counter measures not regulated by that provision—would only be permitted under that view where there is a serious risk of genocide being committed or about to be committed, that is, where there are real and concrete indications that such a risk exists. Finally, as noted earlier, a state could not adopt countermeasures which in effect involve or amount to acts of genocide.
5.2.2.3.7 A duty a geometric variable
The obligation to prevent genocide is an obligation a geometric variable, whose nature and scope depends ultimately on the demonstrated ability of a state in question to dissuade, pressure, or demand of others, the perpetrators or would-be perpetrators of acts of genocide, to refrain from doing so. The greater the influence, the more expansive the obligation. The law does not specify which sort of measures should be adopted in any particular case. It is certain, however, that to be regarded as sufficient, the steps taken would have to reflect the gravity of the matter sought to be prevented and the urgency implied in the need to prevent the commission of acts of genocide. Furthermore, as highlighted by the Court, within the range of possible measures, the state is required to employ ‘all means reasonably available’ and ‘take all measures’ which are within its power and which might contribute to preventing acts of genocide.
5.2.2.4 Compliance with the duty
A state’s compliance with the duty to prevent genocide will be measured against three primary factors: first, does a state have the capacity to influence effectively the action of persons likely or about to commit acts of genocide? The verification of the presence of such capacity in a given case will depend on a variety of factors outlined earlier. Second, within the scope of its proven capacity to influence others, the state is expected to adopt all measures in its power that are reasonably capable of preventing genocide or causing the perpetrators to refrain from such conduct. The state will be held responsible where it ‘manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide’. Third, as noted earlier, a state can be held responsible for breaching the obligation to prevent genocide only if genocide or one of the other prohibited genocidal acts was actually committed. It is at the time when a prohibited act is committed that the breach of an obligation of prevention formally occurs where the state with the power to influence the perpetrators had sufficient prior notice of the risk of commission of such act.
5.2.2.5 A right to inaction?
It has been suggested that inactivity might be a permissible course of action where third parties threaten to commit acts of genocide. Such a view is questionable. First, if applied universally to all states, it would effectively render the duty entirely inoperative. Second, such practice cannot be taken as reflecting a permissible way to comply with the obligation to prevent, but instead as a failure to do so. Third, under the test devised by the ICJ, the factor that determines a state’s obligation to take steps to prevent (or punish) acts of genocide is its ability to influence the perpetrators. In other words, where that power exists, it must be used with a view to preventing the commission of such acts.118 Lastly, as an erga omnes obligation, any state has a right to demand of all others—that is, those with the ability to influence the perpetrators—to take steps to prevent such crimes where they are in a position to do so. A state cannot, therefore, fulfil its obligation to prevent by doing nothing where it has the ability to influence the perpetrators of the acts.
5.2.3 Duty to prevent and ‘responsibility to protect’
The duty to prevent genocide should not be mistaken for the concept of responsibility to protect’ or with the notion of humanitarian intervention. Unlike these, the duty to prevent does not purport to provide an exception to state sovereignties or to the general principles regulating the lawful use of force.120 Furthermore, the duty to prevent genocide is limited to those states, entities, and individuals which a state is able to influence. Substantively, the duty to prevent is also limited to the prevention of acts of genocide rather than providing for a generic responsibility to protect communities from any sort of violence, crimes, or humanitarian threats. Finally, unlike the duty to prevent genocide, it is questionable whether the notion of responsibility to protect is recognized under customary law and whether it generates any legal rights and obligation on the part of individual states. In any case, unlike the duty to prevent genocide, which is a binding legal obligation of states, the ‘responsibility to protect’ is not (yet) a justiciable issue that could engage the responsibility of a state.
5.2.4 Duty to prevent and complicity in genocide
The duty to prevent genocide must be distinguished from the obligation binding on a state not to be complicit to the commission of such an act. First, according to the ICJ, responsibility for complicity in genocide requires a positive act of aid or assistance on the part of an organ of the state in question, whilst responsibility for a failure to prevent may result from a mere failure to act on the part of the state. For reasons outlined earlier, that limited understanding of the notion of complicity is questionable and it is unclear whether a difference can validly be drawn between the two situations on that basis. Second, state responsibility for complicity in genocide would require a higher threshold of knowledge (i.e., ‘full knowledge of the facts’) than would be necessary for a finding of failure to prevent (i.e., requiring that ‘the State was aware, or should normally have been aware, of the serious danger that acts of genocide would be committed’). Finally, responsibility for a failure to prevent (and punish) does not require proof of the attributability of the underlying genocidal act to the state in question. It only requires proof of the ability on the part of the state to influence the perpetrators and a failure on the part of the state to take all measures in its power to prevent such acts. In contrast, where complicity is alleged, the relevant act of assistance will need to be attributed to the state itself.
5.3 Duty to Punish
5.3.1 General considerations
5.3.1.1 Genocide as precondition
As is the case with the duty to prevent, the responsibility of a state for a failure to punish acts of genocide could only be engaged if and when such acts have actually been committed. A state could not evade its obligation to punish, however, by denying that acts of genocide have been committed. In that respect, an international tribunal finding that such acts have been committed, a commission of inquiry’s determinations to the same effect, a court’s provisional measures, a Security Council resolution alerting a state to the fact that acts of genocide might have been committed or other credible indications to that effect would put the state on sufficient notice of its obligation to act.
The duty to punish acts of genocide does not require a state to prosecute such acts specifically under the genocidal label. However, a state is required fully and effectively to investigate and punish conduct that could reasonably be said to amount to genocide. Within that general obligation, however, the competent investigative and prosecutorial authorities of the state concerned have some discretion as to the best way to characterize these acts in accordance with applicable laws. A state could therefore fulfil its obligation to punish acts of genocide by prosecuting those acts under other appropriate legal labels—international (e.g., as crimes against humanity) or domestic (say, murder). In such a case, a state could not be said to have violated its obligation to punish acts of genocide merely because it has done so outside the normative framework of the law of genocide.
5.3.1.2 An obligation of means
Like the duty to prevent, the duty to punish is a duty of means. It does not require the state in question to succeed in prosecuting and punishing the crimes, but to try and use all available means to do so.
5.3.1.3 Duty to punish whose actions?
In regards to the territorial state, the obligation to punish applies in relation to anyone responsible for the commission of a crime on its territory. In addition, in relation to both the territorial state and non-territorial states (and, arguably, certain non-state entities), that obligation accrues not only in relation to officials of that state (or entity) but also in relation to any individual that the state (or entity) in question is in a position to influence—directly or through the organization to which he belongs.
The duty to punish is otherwise universal in its reach. Where the requirements are met in a particular case in relation to a given state, it imposes an obligation upon that state to punish all those whom it is able to punish regardless of their rank or position, including heads of states and other state officials. It also applies regardless of the nationality of the perpetrator.
As discussed further, infra, 5.3.2.4, this does not mean that non-territorial states thereby have an obligation (or the ability and competence) to prosecute such a person as a matter of international law, although it might have that responsibility as a matter of domestic law. For a non-territorial state, the duty to punish might imply other, non-prosecutorial forms of actions material to the goal of bringing genocide suspects to justice.
5.3.1.4 Geographical scope of application
In its Judgment of 11 July 1996 on Preliminary Objections, the ICJ stated that the rights and obligations enshrined in the Convention are held erga omnes and that the obligation of every State to punish genocide is not territorially limited by the Convention. In its Judgment on the Merits, the ICJ further specified that Article VI of the Convention only obliges the Contracting Parties to institute and exercise its territorial jurisdiction over such acts. The two holdings are not contradictory; rather, both touch upon different aspect of the general obligation to punish. The duty to punish is not limited to a duty to exercise jurisdiction over such crimes and to prosecute suspects. That particular aspect of the duty to punish is, under the Convention and customary international law, binding only on the territorial state, that is, the state in which the crimes were committed. Where the state concerned—a state with an obligation to punish arising from its ability to influence the perpetrators—is not the territorial state, the duty to punish will not require it to prosecute the perpetrators in its own courts but will require it to participate in other ways in the effort to hold them accountable. In the Bosnia-Serbia case, for instance, the ICJ thus recalled that an obligation to try the perpetrators of the Srebrenica massacre in Serbia’s domestic courts could not be deduced from Article VI of the Convention as Serbia-Montenegro was not the territorial state.140 It determined, however, that Serbia-Montenegro could be held responsible for failing to cooperate with the Yugoslav Tribunal, a distinct and separate element of the general duty to punish.
5.3.2 Elements of duty to punish
5.3.2.1 General considerations
Like the duty to prevent, the duty to punish genocide leaves some discretion to the states concerned to decide how to best fulfil their obligation. However, their discretion in that regard is not absolute or unqualified. First, whilst a state can generally determine how to go about fulfilling that obligation, it must make that determination and act when confronted with a situation demanding it to act. Therefore, a state cannot opt to do nothing in such a situation.142 This will have implications for a state which has custody of suspects but which is not the territorial state.
Second, the duty to punish has a particular meaning for the territorial state, which is required under the terms of the Convention to exercise its jurisdiction to prosecute such crimes where it is in a position to do so. This, in turn, subsumes a series of related obligations for that state, in particular: to adopt the requisite legal instruments to exercise that competence; to investigate credible allegations of acts of genocide; to arrest suspects; and to bring them to justice.
Third, the standard required of all states under a duty to punish acts of genocide is for a state to take all measures to ensure that those crimes are duly punished. In turn, what this might imply in a given case will largely depend upon the circumstances of the case and, in particular, the nature and extent of its control or influence over the perpetrators and its ability to arrest or transfer a suspect or to take other relevant steps towards punishment. Thus, where it has the ability to do so (practically and jurisdictionally), the state in question will be expected and required to take adequate measures to see to it that perpetrators are made accountable for their actions. What form this might take in a particular case is discussed, infra. 5.3.2.2-5.3.2.9.
Finally, where an international penal tribunal is competent to prosecute acts of genocide, the general obligation to punish genocide will mean that a state with the ability to influence the perpetrators could be held responsible for a failure to punish where it has a duty to cooperate with that tribunal and fails to adopt the necessary means to cooperate with that tribunal with a view to ensuring that suspects are brought to justice. This is the basis on which Serbia-Montenegro was said to be responsible for failing to assist in the arrest and transfer of genocide suspect, Ratko Mladic, to the International Criminal Tribunal for the former Yugoslavia (ICTY).
5.3.2.2 Duty to adopt the requisite legal framework.
One of the core elements of a state’s duty to punish genocide is the requirement to enact the necessary legislation to give effect to that obligation. This was already reflected in UNGA Resolution 96(1), which invited states to enact the necessary legislation for the prevention and punishment of this crime. Subsequently, it was formally sanctioned in Article V of the Genocide Convention.145 This requirement is logical considering that a state cannot excuse its own failure to act by reason of the shortcomings of its own laws. This general normative obligation does not imply, however, that a state must necessarily integrate the notion of genocide into its own legal order, although many states have opted to do so. Instead it means that a state must have the legal, procedural, and institutional tools necessary to effectively investigate, combat, and, as the case may be, prosecute such acts when under an obligation to do so, even if under other legal labels.
5.3.2.3 Duty to do no harm
The general duty to punish genocide imports an obligation to refrain from taking any steps or to adopt measures that could negatively affect the overarching purpose of bringing perpetrators of acts of genocide to justice. For instance, taking actions to prevent others from investigating or bringing to justice genocide suspects would fall into the category of prohibited conduct.
5.3.2.4 Duty to investigate and prosecute
Pursuant to Article VI of the Convention, the territorial state is required to exercise its jurisdictional competence over genocide suspects and to prosecute them where it is able. In relation to that state, a duty to investigate and prosecute therefore arises from the Convention itself and from customary law. This is a duty of means, not of result, but all relevant means must be used by the territorial state to achieve that goal. Therefore, where the territorial state is not in physical custody of a genocide suspect, it would have the right and duty to seek the transfer or extradition of a suspect if that individual is not being investigated and prosecuted in the jurisdiction in which he is located.
Furthermore, while the Convention and customary international law do not oblige any other state to prosecute such acts, it does not forbid any of them from doing so. It is also apparent from the practice of states that an increasing number of countries have taken the view that the duty to punish acts of genocide attaches not just to the territorial state but also to states on the territory of which a suspect is found. Several non-territorial states have thus claimed to be acting not merely out of a possibility given to them by inter¬ national law but out of a duty to prosecute genocide suspects found on their territory. Such practice could one day crystallize into customary law and expand the customary law duty to prosecute beyond the territorial state, but this has yet to reach that status.
Where more than one state including the territorial state claims jurisdictional competence over suspected acts of genocide, the territorial state would enjoy no jurisdictional primacy as a matter of international law. Certain domestic systems will, however, provide for such an ordering of jurisdictional competences.
5.3.2.5 Duty to punish, delegation of competence, and non-surrender agreements
5.3.2.5.1 Punishment through others
Does the duty to punish require the territorial state to always and necessarily exercise its own jurisdiction to investigate and prosecute a genocide suspect or can it be permitted to delegate that responsibility to a third party, for instance to the state of nationality of the suspect? A few preliminary observations are in order to try to answer that question: first, the duty stated in the Convention to punish acts of genocide is un¬ qualified. This suggests that the territorial state cannot wash its hands of this responsibility and it must in fact take concrete steps to fulfil it where required and in a position to do so. At the same time, nothing in the Convention provides for a particular way in which that obligation must be fulfilled. The obligation to punish is one of means and therefore grants a degree of discretion to the territorial state regarding the manner of fulfilment of its obligation. This would tend to suggest that the territorial state could, in principle, agree to another state investigating and punishing an individual suspected of committing an act of genocide on its territory without violating its obligation where there are credible assurances that the expectation of punishment is not thereby rendered meaningless or ineffective. This possibility might actually promote the goal of accountability where, for instance, the suspect is located in a third state (which might be unable or unwilling to extradite him) or where evidence relevant to his prosecution (including witnesses) might be located in that other state.
5.3.2.5.2 Non-surrender agreements
A number of states have entered into agreements pursuant to which they have agreed to grant another state primary—or exclusive—competence over certain categories of individuals (generally, nationals of a state or its officials). In particular, so-called Article 98(2) agreements have been signed by the United States of America with ICC state parties which provide that absent the expressed consent of the party concerned, ‘persons of one party5 (i.e., officials and nationals) present in the territory of the other contracting state shall not be surrendered or transferred to the ICC for any purpose, or be surrendered, transferred, or expelled to any other third country, for the purpose of surrender to or transfer to the ICC. Would such an agreement be valid where the individual concerned is suspected of committing acts of genocide?
First, it is generally accepted that such agreements are not per se unlawful merely because they seek to ensure that suspects are tried in one jurisdiction rather than in another. However, where the underlying conduct involves acts of genocide, the validity of such an agreement would be conditioned by a number of factors. First, should it purport to qualify, reduce, or exclude the peremptory obligation of the territorial state to punish acts of genocide committed on its territory,158 such an agreement would be invalid, at least in respect of any of the clauses that purport to restrict a state’s duty to punish. The territorial state could not, therefore, validly agree not to fulfil its peremptory obligation to punish acts of genocide committed on its territory if the alternative is a transfer to a state in which there is no credible prospect of punishment. Consistent with this, surrender of a genocide suspect by the territorial state to another jurisdic¬ tion would only be permissible where the state to which that individual is transferred is committed to investigate effectively and, as the case may be, prosecute him.
Second, where the custodial state is not the territorial state, it does not have an international law obligation to prosecute such acts in its own courts. However, the prohibition on genocide and the associated duty to punish such crimes is held erga omnes. As such, it is in the interest of all states that such acts be punished and that interest is held by any state in relation to all others. The custodial state cannot therefore— through action or inaction—contribute to shielding an individual suspected of genocide from accountability.160 A state would, therefore, violate its obligation under the Convention (and under customary law) should it transfer a genocide suspect to a jurisdiction where there is no credible prospect of punishment. In the exercise of its decision to extradite or surrender such an individual, the transferring state thus acts as the custodian of the erga omnes interest of the international community to see to the punishment of acts of genocide and must ensure that this interest is not negatively affected by its decision.
Third, what of the situation where a genocide suspect is held by an ICC state party and is wanted by both the ICC and by a third state with which the custodial state has entered into an Article 98(2) non-surrender agreement? Non-surrender agreements are not per se invalid under the ICC regime. Also, the Statute does not exclude the possibility for a state party to have surrender obligations towards a third party as a result of a treaty or agreement. This is readily apparent from the terms of Article 98 of the Rome Statute, which entertains the possibility of other international obligations standing in the way of a state party’s ability of a state party to surrender of a suspect to the Court. This provision does not, however, grant state parties a blank cheque regarding the surrender of ICC suspects to the Court. First, Article 98(2) only applies to individuals sent by a state to another state in which they were detained. This would imply that the individual in question was present in the custodial state at the behest and on behalf of the sending state. Whilst this would arguably encompass state officials and military personnel sent to another state for official purposes, it would not apply merely as a result of their nationality or for reasons of convenience.164 Furthermore, this would seem to imply that the ‘receiving’ state was aware of the fact that the individual in question had been sent by its state, so that post facto claims to that effect by the ‘sending’ state would in principle be ineffective. In addition, the Preamble of the Rome Statute makes it clear that one of the fundamental purposes of the Court is to contribute to ending impunity for international core crimes.
Therefore, all statutory provisions, including Article 98(2), must be interpreted in a way that does not contradict this overarching purpose and result in creating accountability gaps in relation to such crimes. Thus understood, a non-surrender agreement could only come within the scope of Article 98(2) where it provides for an alternative route to accountability, that is, where it adds a willing, able, and competent jurisdiction (that of the sending state) to the existing jurisdictions of the custodial state and of the ICC. In other words, the possibility for a state party to extradite an ICC suspect to a third party would only ever be permissible if surrender is sought (and granted) for the purpose of that individual being investigated and prosecuted in that state. Surrender to a third party as an escape route from accountability would, therefore, not be permissible, even when performed pursuant to a non-surrender agreement binding on a state party. This is the approach seemingly adopted by the Supreme Court of the Philippines which determined that a non-surrender agreement between the United States and the Philippines was valid insofar as it did not result in creating a state of impunity for (potential) surrendered individuals but instead added a third competent jurisdiction (that of the United States) in addition to its own and that of the ICC to which the Philippines could send a suspect for the purpose of investigation and prosecution. This decision reflects the view that for an agreement reached by a state party to come within the terms of Article 98(2), it must be compatible with the overarching accountability purposes of the Rome Statute and cannot create an exception thereto.
Furthermore, Article 98 can only serve as a procedural objection to the surrender of an individual to the ICC. It cannot operate as a defence to the charges nor as a bar to jurisdiction of the Court. In other words, the existence of a conflicting obligation arising for a state party from an international agreement does not render the ICC incompetent. It merely places the state bound by such an obligation in a position of having to arbitrate between conflicting international obligations. There is some dispute in regards to whether it is for the state party concerned or for the ICC to determine which of that state’s international obligations should prevail in a given situation. Whilst the ICC has taken the view that it is its own responsibility to make that determination, a number of national courts have taken the opposite view. Regardless of whether it is for the custodial state or for the ICC to decide this matter, the resolution of this conflict would be affected by the fact that the underlying charges pertain—partly or exclusively—to acts of genocide. First, as the obligation to punish is held erga omnes, the custodial state would have to ensure that the suspect is transferred to the custody of a jurisdiction where there is a reasonable prospect of investigation and, as the case may be, prosecution of that individual. Where this is not the case or where the prospect of this happening is remote, transfer to such a jurisdiction would be barred by the custodial states erga omnes obligation to punish. Second, the obligation to punish acts of genocide is jus cogens so that it can only be overridden by a norm of the same standing.177 * A mere contractual obligation held towards another state as a result of a treaty could not therefore circumvent or qualify that obligation. Third, as a result of Article VI of the Convention, an international penal tribunal that is willing and able to handle the case should have priority over a non-territorial state because there exists in relation to the former a conventional and customary legal obligation to prosecute the suspect that does not exist in relation to the latter. This obligation being held erga omnes, that is, by all and in relation to all, one could argue that such an obligation would demand priority be given to such an international penal tribunal over a jurisdiction in relation to which a treaty-based obligation of lesser normative standing might exist. Finally, as noted earlier, if the surrendering state is the territorial state, such an agreement could not have the effect of qualifying or undermining its conventional and customary law obligation to punish acts of genocide. Therefore, it could not oblige the territorial state to renounce exercising its own competence over such acts although it could leave the door open for that state to opt to seek punishment of such acts through a third party jurisdiction where this is possible and provides a credible course of action to ensure accountability for such acts.
5.3.2.6 Duty to transfer or extradite suspects
5.3.2.6.1 An implied duty to transfer/extradite
Unlike other international instruments, the Genocide Convention does not explicitly provide for a duty to extradite as an alternative to prosecution. Such an obligation could be implied, however, from the terms of the Convention. Professor Schabas has thus suggested that ‘a modern reading’ of Article V might view this provision as equivalent to the aut dedere aut judicare duty.180 Article VII reinforces that view insofar as it regulates certain aspects of the extradition process, although it does not expressly provide for an obligation to extradite.
In addition, there are strong indications that such a duty could be inferred from the general obligation to punish and that a duty to transfer or extradite a genocide suspect might be binding as customary law where the state holding the suspect cannot or will not prosecute that suspect. This is apparent already from incidents of state practice to the effect that such an obligation is indeed part of customary law. For instance, the Federal Court of Australia determined, in cases concerning the Native Title Amendment Act 1998 and the Arabunna People, that the obligation aut dedere aut judicare was part of customary law in regard to the peremptory prohibition against genocide.182 Similarly, when responding to a refusal by Guatemala to grant five extradition requests pertaining to genocide suspects, an investigating judge in Madrid asserted that the aut dedere aut judicare obligation is based not only on conventional law but also on customary international law and arises out of the jus cogens character of the prohibition of genocide and crimes against humanity. That view may also be inferred from the reasoning of the ICJ in the Bosnia-Serbia case. Having found that Serbia-Montenegro was not required under the terms of the Convention to prosecute the underlying acts in question (Serbia-Montenegro not being the territorial state), the Court took the view that it nevertheless had outstanding obligations arising from its obligation to punish as regards the transfer to the ICTY of persons accused of genocide (in particular, General Ratko Mladic), in order to comply with its obligations under the Genocide Convention. The view that the requirement forms part of customary law is further supported by the growing amount of state practice in the form of domestic legislations criminalizing acts of genocide and providing for the possibility of prosecution of a person in the custody of a state if extradition or surrender is not possible to another competent (international or national) jurisdiction. Finally, the view that there exists a customary law obligation to extradite or surrender genocide suspects where they cannot be tried in the custodial state is consistent with the object and purpose of the Convention to ensure accountability for such crimes. A different view could result in creating accountability loopholes where a state does not prosecute and declines to extradite a suspect leaving that him unpunished and unconcerned by justice.
Thus understood, the duty of all states to punish acts of genocide may be said to include and to subsume an obligation to transfer or extradite genocide suspects to a competent jurisdiction as an alternative to prosecution—aut dedere, aut judicare—where the custodial state is unable or unwilling to try the suspect.187 Extradition would of course only be possible where the state in question has physical custody of the suspect and where the applicable requirements for extradition or transfer are met.
The application, in a domestic legal system, of statutory limitations regarding the underlying acts in question would not per se exclude the possibility of transfer of a suspect to such a jurisdiction if these have not yet lapsed and when the authorities have enough time to prosecute the suspect under the time remaining before the statutory limitation period expires.
5.3.2.6.2 Genocide is not a political crime
Article VII, paragraph 1, of the Genocide Convention makes it clear that genocidal acts shall not be considered political crimes for the purpose of extradition. This, arguably, now reflects a general principle of international law.
5.3.2.6.3 Where prosecution and extradition are not possible
A situation could arise where a state is not permitted to extradite a suspect under its own laws (e.g., because he is a non-extraditable national or because of fair trial concerns in the requesting state) and where he is, at the same time, not competent or unable to prosecute that suspect. Can that state be held responsible for failing to fulfil its duty to punish in such a case? First, it must be noted that a state cannot excuse its failure to fulfil its international obligations by reason of the shortcomings of its own internal laws. The fact that a state failed to enact legislation to give effect to this prohibition would thus provide no valid justification for its failure to act. Where extradition is not possible for reasons unrelated to the custodial state, that state would be expected to ensure that its legislation provides for the broadest possible jurisdictional competence over such acts so as to prevent any accountability gap. In the first proceedings of their kind, courts in the Netherlands determined that Dutch law, as existed at the time, did not provide for their competence over acts of genocide committed by a Rwandan in Rwanda in 1994 and who at the time resided in the Netherlands. The law was later amended to provide for the possibility of prosecution in Dutch courts of persons found on Dutch territory and who committed one of the listed international crimes (including genocide) outside the Netherlands.193 Furthermore, where at a given time extradition is not possible, a state would be expected to review the possibility of extradition regularly if circumstances change. In addition, where the law of the state does not allow for the prosecution of the acts as genocide, it must at least ensure that suspects are prosecuted under appropriate domestic equivalents. Second, as a norm of jus cogens, the duty to punish such crimes could only be qualified by a competing international law norm of the same standing. Extradition might be impossible in a given case where, for instance, immunities,196 or human rights considerations, would prohibit it.
These demands reflect the fact that the Convention implies a general prohibition on accountability sanctuaries for genocide suspects. A state that is required to punish acts of genocide which fails to take all reasonable measures to ensure that such individuals are brought to justice—legislative, investigative, or prosecutorial—could thus engage its responsibility. However, the obligation to punish is an obligation of means, not of result, so that a state that has taken all necessary steps to try to secure the punishment of such individual but is unable to achieve that goal cannot for that reason alone be held responsible.
5.3.2.7 Duty to cooperate
5.3.2.7.1 Duty to cooperate with the territorial state and with an international penal tribunal
The Preamble of the Genocide Convention states that, in order to liberate mankind from such an odious scourge, international cooperation is required. This echoes the terms of Resolution 96(1), which recommended ‘international co-operation be organized between States with a view of facilitating the speedy prevention and punishment of the crime of genocide1. Such cooperation reflects the general interest of the inter¬ national community not to leave acts of genocide unpunished.
An underlying obligation to cooperate with competent jurisdictions under the Convention to investigate and prosecute acts of genocide is now part of customary law. The Convention does not provide for a general and explicit obligation to cooperate for the purpose of preventing or punishing genocidal acts. Instead, such an obligation has been inferred as a necessary element of the duty to punish. The ICJ has thus held that the FRY was required by the terms of the Convention to cooperate with the ICTY, a tribunal which it said constitutes an ‘international penal tribunal’ under the Convention and which was competent to punish the crimes in question. On the facts of the case, the Court held that the FRY had not cooperated fully with the ICTY and pointed, in particular, to the fact that it had failed to arrest and transfer ICTY genocide indictee, Ratko Mladid. The same reasoning could have applied, mutatis mutandis, in relation to a failure to cooperate with the territorial state had it sought to exercise jurisdiction over that suspect. The Court’s reasoning suggests that, under the terms of the Convention, an obligation to cooperate is not binding only on the territorial state and is thus not dependent on that state being competent to prosecute the crime. This is the logical consequence of the erga omnes nature of the obligations arising from the law of genocide: such an obligation exists in relation to all states and for the benefit of all. Under the terms of the Convention, an obligation to cooperate can therefore attach to any state with power over the perpetrators but it would only exist vis-i-vis or in relation to the territorial state and/or a penal international tribunal which are competent under the Convention to prosecute such crimes. An obligation to cooperate with any other state or hybrid jurisdiction cannot be inferred from the terms of the Convention.
5.3.2.7.2 Duty to cooperate with other jurisdictions?
The practical effect of the ICJ Judgment in the Bosnian case is that the duty to punish imports a limited obligation on the part of states to cooperate. Under the terms of the Convention, such an obligation is limited to providing cooperation to either of the two sorts of jurisdictions foreseen by it—the territorial state or an international penal tribunal. Can the view be taken that customary law now reaches beyond these two sorts of jurisdictions and that an obligation to cooperate would exist in relation to any jurisdiction that take over the responsibility of punishing such crimes? One view would posit that the purpose of the Convention demands that all states should co¬ operate to achieve punishment for such acts and that such a duty exists regardless of the jurisdiction that seeks that cooperation. Another interpretation would be that an obligation is foreseen by the Convention only where the jurisdiction seeking cooperation is one competent under its terms (i.e., the territorial state or an international penal tribunal). In its 1951 Advisory Opinion, the ICJ appeared to lean in favour of the former view when describing the cooperation required under the Convention as one intended ‘to liberate mankind from such an odious scourge’ and being of universal character. Such a general obligation to cooperate would also be consistent with Article 1(3) of the UN Charter pursuant to which one of the purposes of the United Nations is to ‘achieve international cooperation in solving international problems of … [a] humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all’. Preventing and punishing genocide would squarely fall within the scope of such problems. A number of semiofficial or soft law statements similarly call for or support the view that such a general obligation may exist, although the practice and authorities on which these claims are made are often thin or not readily apparent.
Whilst the practice of states reveals a growing awareness of the need and desirability for greater cooperation among states to achieve the stated goals of the Convention, it is doubtful that a general and mutual obligation to cooperate on the part of all states towards one another in relation to acts of genocide has now crystallized under customary law. Whilst an obligation to cooperate may be said to exist in relation to the two jurisdictions foreseen by the Convention—the territorial state and international penal tribunals—it is perhaps too early to talk of a general, jurisdiction-neutral, obligation to cooperate with any state or court that takes upon itself the responsibility to punish acts of genocide. This, of course, does not prevent states from agreeing to be bound by such an obligation in relation to one or more states or for such an obligation to be provided explicitly in the regulatory regime of a hybrid or international criminal tribunal. Nor would the Convention prohibit a state from volunteering to provide assistance and support to a non-territorial state or jurisdiction that seeks to punish acts of genocide.
53.2.7.3 Content of the duty to cooperate
As is apparent from the Judgment of the ICJ in the Bosnia-Serbia case, the duty to cooperate can require a state to arrest and transfer a genocide suspect where a state is in a position to do so in relation to either of the penal jurisdictions provided for under the Convention. This might also imply other forms of assistance relevant and necessary ‘to liberate mankind from such an odious scourge’. The Court also held in the Bosnia-Serbia case, that ‘it is irrelevant whether the State whose responsibility is in issue claims, or even proves, that even if it had employed all means reasonably at its disposal, they would not have sufficed to prevent the commission of genocide’. According to the Court, ‘[a]s well as being generally difficult to prove, this is irrelevant to the breach of the obligation of conduct in question, the more so since the possibility remains that the combined efforts of several States, each complying with its obligation to prevent, might have achieved the result—averting the commission of genocide— which the efforts of only one State were insufficient to produce’. The fact that the collective actions of states might have been better suited or more effective in a particular case to achieve that goal and that a single state’s actions might not have been able to achieve it on its own thus provide no justification for a failure to act.
5.3.2.8 Duty not to give legal effect to such acts
As reasoned by the ICJ in the Wall case, given the character and the importance of the rights and obligations involved, it may be said that all states are under an obligation neither to recognize nor to give effect to an illegal situation resulting from the commission of acts of genocide. The common interest in compliance with the relevant obligations under the Convention would also imply that every state is entitled to make a claim concerning the cessation of an alleged breach by another state party involved in the commission of acts of genocide.
5.3.2.9 Countermeasures and plea of necessity
The prohibition against genocide is absolute in character and does not permit any derogation. A state taking countermeasures could not therefore derogate from that general prohibition by adopting measures amounting to or involving acts of (counter)genocide. Thus, in no case could a breach of the Convention serve as an excuse for another. The plea of necessity likewise could not excuse the breach of this peremptory norm.