4.1 Jurisdictions Foreseen by the Convention
4.1.1 General considerations
The Genocide Convention provides for three jurisdictional venues of relevance for the enforcement and implementation of its terms. The first two are competent to prosecute and punish acts of genocide attributable to individual perpetrators. According to Article VI, they consist of: the competent jurisdictions of the state in which acts of genocide have been committed (i.e., the territorial state) and an ‘international penal tribunal’. In addition, Article IX of the Convention provides that disputes between Contracting Parties ‘relating to the interpretation, application or fulfilment’ of the Convention can be sub¬ mitted to the International Court of Justice (ICJ) at the request of any of the parties to the dispute.
4.1.2 Two penal jurisdictions expressly foreseen
Article VI of the Genocide Convention provides that ‘persons charged with genocide shall be tried by a competent tribunal of the State in the territory of which the act was committed or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction’. The Convention thus expressly mentions only two jurisdictions as enforcement mechanisms of its penal provisions. This dual jurisdictional competence does not create a right for a suspect to choose between these jurisdictions.4 Instead, it provides for two jurisdictions potentially competent under the Convention to hear and prosecute allegations of genocide.
4.1.3 No exclusion of other penal jurisdictions
During negotiations, states discussed, but ultimately rejected, the possibility of expanding the jurisdictional reach of the Convention including through the adoption of universal /jurisdiction. The rejection, however, did not reflect an intention on their part to exclude the possibility for other jurisdictions to prosecute acts of genocide.
The Convention’s limited jurisdictional reach merely reflects the fact that, besides the territorial state, negotiating nations could not agree at the time that any other state would be required under the Convention to prevent and punish acts of genocide. In contrast, the Convention did not purport to regulate situations where a state or an international(ized) tribunal would be permitted to prosecute such acts. The Convention cannot therefore be read as prohibiting any jurisdiction—domestic, international, or hybrid—from prosecuting acts of genocide besides the two that are foreseen in that treaty. As an illustration of that fact, national jurisdictions have relied on a variety of jurisdictional bases— including in some cases the notion of universal jurisdiction—to prosecute acts of genocide committed outside of their territory.
Conversely, the above cannot be interpreted as a suggestion that customary law recognizes a right for any state to prosecute acts of genocide. Rather, it merely excludes the suggestion that the law of genocide restricts jurisdictional competence over such acts to the jurisdictions expressly foreseen by the Convention. Aside from the territorial state, the legal entitlement of national courts to exercise jurisdictional competence over acts of genocide is thus determined, not by the Convention or general international law, but by the domestic law of the state that is considering exercising its competence over allegations of genocide.
4.1.4 The International Court of Justice
Article IX of the Genocide Convention provides that disputes between contracting parties ‘relating to the interpretation, application or fulfilment’ of the Convention, ‘including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the ICJ at the request of any of the parties to the dispute1. The Court’s competence pursuant to Article XI may thus cover issues of interpretation of the Convention, issues linked to its application (or non-application) and to the fulfilment of obligations provided for in the Convention (including those foreseen in Articles II, III, V, VI, and VII), such as disputes pertaining to the responsibility of a state for any of the acts prohibited under the Convention.16 It requires proof of the existence of a dispute between contracting par¬ ties regarding any of the aforementioned matters. A dispute is to be understood as ‘a situation in which the two sides hold clearly opposite views concerning the question of the performance or non-performance of certain treaty obligations’. For instance, in the case between Bosnia and Herzegovina and the Former Republic of Yugoslavia, the ICJ determined that Yugoslavia’s rejection of Bosnia and Herzegovina’s complaints fell within the terms of Article IX of the Genocide Convention. The ICJ took the view that the Parties disputed the facts of the case, questioned whether these facts could be imputed to other individuals, and challenged whether the provisions of the Convention applied to the facts. Moreover, the ICJ noted that the parties disagreed with respect to the meaning and legal scope of several provisions of the Convention, including Article IX. Therefore, the ICJ concluded that a dispute existed between the two contracting parties relating to the interpretation, application, or fulfilment of the Convention—including the responsibility of a state for genocide—in accordance with Article IX.
Under Article IX, the Court’s remedial powers include issuing binding decisions re¬ garding a state’s compliance with its obligations under the Convention. Where a state fails to comply with those obligations, the Court can also determine which measures are required to repair the harm caused. Importantly, the Court is not competent to establish that anyone—a State or an individual associated therewith—is criminally responsible for the commission of acts of genocide.
4.2 Universal Jurisdiction
There is some suggestion that customary international law provides for ‘universal’ jurisdiction over acts of genocide. Under the most extreme version of that proposition, any state would per force be jurisdictionally competent to investigate and prosecute acts of genocide regardless of the place where the crimes were committed and regardless of the nationality of the perpetrators and victims. Putting aside difficulties associated with defining the notion of universal jurisdiction, such a sweeping claim is hard to accept. The fact that a large number of states and international(ized) criminal tribunals now have jurisdiction over acts of genocide cannot be read as reflecting the view that customary international law grants universal jurisdiction to any nation over acts of genocide. Nor does state practice suggest that there now exists a generally recognized customary law obligation to prosecute suspected perpetrators of acts of genocide on the basis of universal jurisdiction. In this regard, practice is too contradictory and too jurisdiction-specific for such claims to be entirely convincing. Nor can the Statute of the International Criminal Court be read as creating universal jurisdiction over international crimes for state parties. Instead, the possibility for a state to exercise universal jurisdiction over acts of genocide—and the conditions under which this can be done—is determined not by customary law but by the law of the state in question which might provide for such a possibility. International law would not prevent a state from exercising universal jurisdiction over acts of genocide where its laws provide for it.