Shane Hensinger On State vs. Individual Responsibility for GenocideGenocide in the Modern AgeWagner Graduate School of Public Service – New York UniversityJanuary 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 (individualresponsibility) into an area recently illuminated by an International Court of Justiceopinion on

state

responsibility

for genocide by parties to the Balkan conflicts of the1990s.Drawing on the experience of the trials of Axis defendants at Nuremberg and becausethere had not previously existed a treaty forbidding the planned extermination of an entirerace or group of people, the United Nations in 1948 agreed upon the Convention on thePrevention 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: “TheContracting Parties confirm that genocide, whether committed in time of peace or in timeof 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, inaccordance with their respective Constitutions, the necessary legislation to give effect tothe provisions of the present Convention, and, in particular, to provide effective penaltiesfor 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 casesof genocide in the Balkan Wars during the 1990’s as well as the Rwandan Genocide in1994.In the case of the Balkans when former Secretary of State Warren Christopher was askedunder oath if genocide had occurred in Bosnia-Herzegovina he answered: “There’s nodoubt in my mind that rape and ethnic cleansing and other almost indescribable acts havetaken place and it certainly rises to the level that is

tantamount to genocide

. The technicaldefinition is not perhaps what’s important here, but what is important is that it is atrociousconduct, 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 adiscussion paper on Rwanda circulated between the US Department of Defense and theState 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.

BeCareful. 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, whenasked for comment on whether Rwanda was genocide, said this: “Well, as I think youknow 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, particularlyabout 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 UnitedStates ratified the Convention on Genocide. But in the period between 1948 and theratification 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 MarshArabs 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 legalframework 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 acase brought by Bosnia-Herzegovina against Serbia charging Serbia with violations of theGenocide Convention.The court found that “as a matter of principle, international law does not recognize thecriminal responsibility of the State, and the Genocide Convention does not provide avehicle for the imposition of such criminal responsibility. The Court observes that theobligation 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, inthis case the provisions of the Convention, and that the obligations in question and theresponsibilities of States that would arise from breach of such obligations are obligationsand 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 Stateresponsibility for genocide and the other enumerated acts. The Convention, it is said, is astandard 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 theConvention 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 imposeobligations 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 theGenocide Convention the ICJ then moved into the area of accountability for the genocidewhich 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