International law, Sixth edition
particular situation (whether international or domestic) and was not ter-
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International Law MALCOLM N. SHAW
particular situation (whether international or domestic) and was not ter- ritorially limited by the Convention. 106 The type of state responsibility envisaged under article IX of the Convention did not exclude any form of state responsibility. 107 In addition, the Court observed that the Conven- tion did not contain any clause the object or effect of which was to limit the scope of its jurisdiction ratione temporis so as to exclude events prior to a particular date. 108 Yugoslavia subsequently withdrew the counter- claims it had introduced against Bosnia, 109 while introducing an applica- tion in April 2001 for revision of the 1996 judgment on the basis that a ‘new fact’ had appeared since that state had become a new member of the UN during 2000. This was rejected by the Court. 110 On 26 Febru- ary 2007, the Court rendered its judgment on the merits. The Court affirmed that the effect of the categorisation of genocide as a ‘crime under international law’, coupled with the obligation to prevent genocide con- tained in the Genocide Convention, is to prohibit states from committing 103 ICJ Reports, 1993, pp. 3, 24; 95 ILR, pp. 1, 39. 104 ICJ Reports, 1993, pp. 325, 350; 95 ILR, pp. 43, 68. See also the Separate Opinion of Judge Lauterpacht, ICJ Reports, 1993, pp. 407, 431–2; 95 ILR, pp. 125, 149–50. 105 Now so called, rather than the former Yugoslavia (Serbia and Montenegro), as from, and in consequence of, the Dayton Peace Agreement initialled at Dayton, USA, on 11 November 1995 and signed in Paris on 14 December 1995. 106 ICJ Reports, 1996, pp. 595, 615; 115 ILR, p. 1. 107 ICJ Reports, 1996, p. 616. 108 Ibid., p. 617. See also the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports, 1996, pp. 226, 240; 110 ILR, p. 163. 109 ICJ, Order of 10 September 2001. 110 ICJ Reports, 2003, p. 7. See further below, chapter 19, p. 1106. t h e p r o t e c t i o n o f h u m a n r i g h t s 285 genocide through the actions of their organs or persons or groups whose acts are attributable to them. 111 The Court also held that state responsibil- ity could arise under the Convention for genocide and complicity, with- out an individual being convicted of the crime or an associated one, 112 and that such responsibility for genocide applied to a state wherever it may be acting. 113 It was noted that the essence of the intent, at the heart of the definition of genocide, is to destroy the protected group, in whole or in part, as such. It is a group which must have particular positive characteristics – national, ethnical, racial or religious – and not the lack of them. The intent must also relate to the group ‘as such’. That means that the crime requires an intent to destroy a collection of people who have a particular group identity 114 and such intent refers to the intent to destroy at least a substantial part of the particular group and this may apply to a geographically limited area (such as Srebrenica). 115 The Court emphasised that claims against a state involving charges of ex- ceptional gravity, such as genocide, must be proved by evidence that is fully conclusive. 116 However, the Court emphasised that the Convention established a separate and distinct duty to prevent genocide, which was both ‘normative and compelling’ 117 and an obligation of conduct, not of result, 118 provided that the offence was actually committed. 119 Such obliga- tion arose at the instant that the state learned of, or should normally have learned of, the existence of a serious risk that genocide would be commit- ted. 120 It was also held that Serbia was in violation of its duty to punish genocide. 121 111 ICJ Reports, 2007, paras. 161–7. See also Democratic Republic of the Congo v. Rwanda, ICJ Reports, 2006, pp. 6, 31–2, where the Court noted that the rights and obligations in the Genocide Convention were rights and obligations erga omnes and stated that the prohibition of genocide was ‘assuredly’ a norm of jus cogens. 112 ICJ Reports, 2007, para. 182. 113 Download 7.77 Mb. Do'stlaringiz bilan baham: |
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