Divergent Approaches to Determining Responsibility for Genocide: The Darfur Commission of Inquiry and the ICJ's Judgment in the Genocide Case

Internationally sanctioned assessments of genocide are relativelyuncommon, and since genocide is usually assessed in the contextof an individual's criminal prosecution, assessments of stateresponsibility for genocide are even rarer. Yet two such analyseshave recently been completed: the International Commission ofInquiry on Darfur's Report and the International Court of Justice'sJudgment on genocide in Bosnia. On a key issue, the methodologyfor determining whether a state is responsible for genocide,they diverged. Whereas the Darfur Commission determined whetherthe ‘central government’ of Sudan pursued a statepolicy or plan for genocide in Darfur, the ICJ stressed thata state commits genocide through the acts of its officials,holding that if a state organ or a person or group whose actsare legally attributable to the state, engages in genocide,then the international responsibility of that state is incurred.This article critically examines the different methodologicalapproaches taken by these two bodies in light of internationaljurisprudence. It argues that the Darfur Commission erred infocusing its genocide inquiry on whether high-level officialsin Sudan's government possessed genocidal intent, rather thanon the perpetrators of the underlying criminal acts. In addition,it argues that, whether the Commission's goal was to determinestate responsibility or individual criminal responsibility,its approach was at variance with international law as elucidatedin the UN ad hoc tribunals and as subsequently confirmed bythe ICJ in the Genocide Case. In that regard, the ICJ Judgmentreestablishes two sound methodological principles: the existenceof a state plan or policy, although probative of intent, isnot an implicit element of genocide; and determining state intent(however that may be defined) is not a part of determining stateresponsibility for genocide.     

What the ICJ did not say about the Duty to Punish Genocide: The Missing Pieces in a Puzzle

The article focuses on the legal implications of the constructionof the International Court of Justice (ICJ or the Court) ofthe duty to punish genocide under Article VI of the Conventionon the Prevention and Punishment of the Crime of Genocide inthe Bosnia and Herzegovina v. Serbia and Montenegro judgment.It posits that the Court's discussion of the duty to punishis satisfying in terms of what it says and less satisfying interms of what it is silent about. It is satisfying in the sensethat the Court's construction of the duty to cooperate withinternational tribunals prosecuting genocide as including aduty of extradition, seems to extend beyond the plain languageof the Convention and indeed beyond the parties’ originalintent. It is not fully satisfying because the duty to prosecuteremains quite limited. It is further argued that the obligationto punish genocide as established in Article I and the obligationto prosecute genocide as established in Article VI should beunderstood as two distinct obligations. Article VI merely setsthe institutional arrangements for prosecution. Other normativesources support the conclusion that a general duty to prosecuteperpetrators of genocide or extradite them for prosecution elsewhereapplies even in those cases where the offence was not committedin the territory of a contracting state or when the offenderis prosecuted by an international court that has jurisdictionover the state where the alleged perpetrator is found.     

Reparation in Cases of Genocide

In the judgement delivered in Bosnia and Herzegovina v. Serbia,the International Court of Justice (ICJ) found that Serbia,with regard to the acts of genocide committed in Srebrenica,had breached the obligation, as set out in Article I of the1948 Genocide Convention, to prevent genocide. However, it alsofound that Bosnia and Herzegovina had no right to monetary compensationand that the mere declaration of Serbia's responsibility fornot preventing the genocide in Srebrenica was in itself appropriatesatisfaction. This article criticizes the decision of the ICJnot to accord monetary compensation, which was based on thelack of a causal nexus between the failure by Serbia to complywith its obligation to prevent genocide and the death of 7000men in Srebrenica. It argues that the Court should have shiftedthe burden of proof and should have required Serbia to showthat even if the institutions of the then Federal Republic ofYugoslavia (FRY) had taken appropriate measures, the BosnianSerbs would nonetheless have completed their criminal plans.Concerning the issue of satisfaction, the article notes thatthe ICJ could have ordered symbolic monetary damages, by takinginto account international practice and the request by the Applicant.In addition, it observes that international tribunals enjoya large measure of discretion in awarding satisfaction and that,in making a determination on the most appropriate form of satisfactionthe genocidal tragedy itself should not have been left aside.In this connection, the ICJ could have found guidance in thecase law of the European Court of Human Rights, which in someinstances has taken into account the degree of pain and sufferingendured by the victims. Finally, with regard to guarantees andassurances of non-repetition, the article notes that these donot constitute a form of reparation, but rather should be consideredas an expression of the obligation to comply with the primaryrule incumbent upon a state in particular situations. The articleagrees with the Court's conclusion that an assessment of theprevailing situation in Bosnia and Herzegovina did not provideany clues to the presence of an actual threat to the physicalintegrity of the Muslim population. However, it contends thatthe reluctance by Serbia to arrest and transfer to the ICTYGeneral Mladi, more than three months after the delivery ofthe judgment of the ICJ and the issuance of a specific orderin this regard, unequivocally demonstrates the strong ties ofsolidarity between the Serbian leadership in Serbia and in theRepublika Srpska. Serbia is making itself an ex post accompliceof genocide, with far-reaching consequences for its envisagedintegration into the European Union.     

Genocide, Complicity in Genocide and International v. Domestic Jurisdiction: Reflections on the van Anraat Case

When adjudicating international crimes, domestic courts arefaced with a choice between the application of internationallaw or national law. In the recent van Anraat judgment, a DutchDistrict Court explicitly opted for the former alternative.This approach led to the accused's acquittal of complicity ingenocide. In the Court's opinion, there was no proof beyonda reasonable doubt that van Anraat had actual knowledge of SaddamHussein's special intent to destroy part of the Kurdish population.According to the Court, such proof is required under internationallaw. This article argues that the Court's preference for internationallaw was not prescribed, either by international law or by domesticlaw, although in principle such preference may prove advisable,whenever international rules are clear and exhaustive. Aftertracing the intricate legal discussions on mens rea requirementsfor genocide and complicity in genocide, the author concludesthat the issue has not yet been completely elucidated in internationalcase law and legal literature. In situations of ambiguity whereinternational case law offers insufficient guidance, domesticcourts would better resort to their own criminal law. As Dutchcriminal law extends the mens rea of the accomplice beyond ‘knowledge’so as to cover dolus eventualis as well, application of domesticlaw might have affected the outcome of the case.     

Evidentiary Issues in the ICJ's Genocide Judgment

Despite the commitment by the International Court of Justice(ICJ or the Court) in clarifying underlying methods and guidelinesof its approach to fact-finding and evidence, it can be doubtedwhether the judgment delivered in the Bosnia and Herzegovinav. Serbia case genuinely marked a decisive step towards a moretransparent and reliable methodology for evidentiary matters.Behind the formula of ‘fully conclusive evidence’,when dealing with Articles II and III of the Genocide Conventionthe Court adopted for all practical purposes a typical criminallaw ‘beyond any reasonable doubt’ standard of proof.By this choice the Court upheld in substance the argument putforward by Serbia that even if the questions of state responsibilityfor acts of genocide are not excluded by the scope of the Convention,they must nevertheless be judged by the same parameters of individualcriminal responsibility. In reaching its conclusions the Courtrelied heavily on the jurisprudence of the ICTY, both as regardsthe ascertainment of facts and their legal qualification. Itremains to be seen whether in future cases the Court will beable to adopt a similar criminal court posture, and whetherit will be similarly prepared to rely on the findings of otherinternational tribunals such as the International Criminal Court,which is not established by the Security Council.     

International criminal justice: reflections on the past and the future

While Nuremberg constitutes a watershed in the evolution of international law with its establishment of the fundamental principle of individual criminal responsibility under international law it has not left much else by way of precedent for the subsequent international criminal tribunals. The adoption of UN Security Council Resolution 827 establishing the International Criminal Tribunal for the Former Yugoslavia, and Resolution 955 (1994) establishing the International Criminal Tribunal for Rwanda, set the groundwork for a new model of hybrid tribunals, with the establishment of the Special Court for Sierra Leone in 2002, the Extraordinary Chambers in the Courts of Cambodia in 2006, and the Special Tribunal for Lebanon in 2007. Perhaps one of the greatest legacies of these ad hoc and hybrid courts and tribunals has been paving the way for the establishment of a permanent international criminal court. However, they have also brought about the development of international criminal law through judicial interpretation, elaborating, inter alia, the elements of the crime of genocide as detailed in the 1948 Genocide Convention, the judicial recognition of the concept of joint criminal enterprise and the principle that national arrangements for amnesties in respect of international crimes are no bar to prosecution for such crimes at an international tribunal. In view of the completion strategies of the ad hoc Tribunals, as well as of the SCSL, this article delves into some of their legacies and outlines some of the difficulties and challenges they have faced, while identifying areas of best practice in order for the newly‐operational International Criminal Court to avoid repeating the mistakes of the past or even reinventing new wheels.     

Reclaiming Fundamental Principles of Criminal Law in the Darfur Case

According to the authors, the Report of the UN Commission ofInquiry on Darfur and the Security Council referral of the situationin Darfur to the International Criminal Court (ICC) bring tolight two serious deficiencies of the ICC Statute and, moregenerally, international criminal law: (i) the systematic ambiguitybetween collective responsibility (i.e. the responsibility ofthe whole state) and criminal liability of individuals, on whichcurrent international criminal law is grounded, and (ii) thefailure of the ICC Statute fully to comply with the principleof legality. The first deficiency is illustrated by highlightingthe notions of genocide and genocidal intent, as well as thatof joint criminal enterprise. The second is exposed by drawingattention to the uncertainties and ambiguities surrounding suchnotions as recklessness and dolus eventualis, and in additionto the frequent reliance in both international case law andthe legal literature on customary international law and looseconcepts such as proportionality. The authors finally pointout that if the ICC tries to operate as a real criminal courtunder the rule of law and shows sensitivity to the rights andinterests of the accused, US fears of politicized prosecutionwill diminish.     

当代国际刊法的新发展

大量证据显示国际刑事审判的展开促进了国际刑法的发展,而在国际刑法发展的进程中,出现了一系列新的观念和原则并逐渐得到国际社会的广泛认可,诸如灭绝种族罪、危害人类罪和战争罪的定义,以及合法性原则、补充性管辖原则、个人刑事责任原则和国际合作与司法协助原则等。国际刑事法院的建立在国际刑法制度发展中具有里程碑式的意义,联合国、联合国宪章以及联合国大会的一系列决议为国际刑法的发展发挥了至关重要的作用。     

The Hamdan Case and Conspiracy as a War Crime: A New Beginning for International Law in the US

In the Hamdan decision, Judge Stevens, writing for the majority,addressed the boundaries of the law of war and specificallywhether the conspiracy charge lodged against Hamdan constituteda violation of this body of customary international law. TheSupreme Court persuasively held that conspiracy does not constitutea war crime.     

指挥官刑事责任基本理论

指挥官刑事责任是指挥官因为其下级实施了犯罪而应当承担的一种共犯责任。该理论在20世纪随着一系列重要的国际刑事司法实践而逐渐形成,并在当前主要的国际刑事法律中得到了体现。要追究指挥官的刑事责任,必须证明三点:具有上下级关系;上级知道或者应当知道下级的罪行;上级指挥官未能采取合理、必要的措施阻止犯罪或者惩罚罪犯。但是,无论是在司法实践中,还是在理论研究上,人们对这个原则还有不同的认识与做法,一个科学、合理的指挥官刑事责任理论体系还有待建立。     

论卢旺达国际刑事法庭对国际刑法发展的贡献

卢旺达国际刑事法庭在1994年的建立和12年的审判实践经验为国际刑事法的发展作出了一定贡献.主要表现在:卢旺达国际刑事法庭是历史上首次建立专门审理非国际性武装冲突的国际刑事法庭;丰富了国际人道主义法的内容;扩大了对在非国际性武装冲突中犯罪的管辖权,进一步积累了国际刑事法院的审判经验,对国际刑法中的三大罪行的界定作出了新的阐释;推动了非洲国际法学的发展并在一定程度上促进了常设性国际刑事法院的建立.     

试论普遍义务及其对国际刑法的影响

“普遍义务”是指国家对整个国际社会所负有的义务,是近代国际法中最为重要的概念之一。自该概念于上世纪70年代首次出现在国际法院的判决书中以来,它一直对国际法,特别是国际刑法的发展具有潜移默化的影响。研究普遍义务的含义、内容及其法律后果,并就该概念对国际刑法的影响加以分析,将为全面、深刻地理解国际刑法的内涵与发展具有积极意义。     

CONFLICTS AND HARMONIZATION ON GM FOOD LABELING IN INTERNATIONAL LAW

This article analyzes the conflicts of international law on genetically modified (GM) food labeling and explains possible methods to harmonize these conflicts. One way is to interpret the treaties of the World Trade Organization (WTO), Biodiversity Convention, and the International Court of Justice (ICJ); the other way is to enhance cooperation among international institutions and treaties, such as WTO, Biodiversity Convention, Codex Alimentarius Commission (CAC), International Law Commission (ILC), and the United Nations Environment Programme (UNEP). These methods cannot form an international standard on GM food labeling accepted by most countries. The difficulties with this issue concerned illustrate that GM food labeling shows off conflicts between trade law and environmental law, which lead to legal chaos that is faced with uncertainty of technology, fragmentation of international law and diversity of domestic law, and complexity of national interests on environmental labeling and process labeling.     

Comments on Guyana v. Suriname

Guyana v. Suriname is a case where the international tribunalhas an opportunity to deal with the state responsibility issuein a maritime delimitation dispute. This paper examines thejurisdiction of the arbitral tribunal over Guyanese submissionthat Suriname was internationally responsible for violatingits obligations under the LOS Convention, the Charter of theUnited Nations and general international law to settle disputesby peaceful means. And the arbitral tribunal made great contributionsto the clarification of the obligations under Articles 74(3)and 83(3) of the LOS Convention to make every effort to enterinto provisional arrangements and not to jeopardize or hamperthe reaching of a final delimitation agreement.     

A generalization of the obligation to prevent: From genocide convention to racial discrimination convention

The decision of the International Court of Justice in the case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”) highlights states’ obligations under the Convention, especially the obligation to prevent. When it comes to the case concerning the International Convention on Elimination of All Forms of Racial Discrimination (“Racial Discrimination Convention”), the decision of the Court indicating provisional measures seemingly purported to generalize its jurisprudence in the Genocide Case. By elaborating this kind of new jurisprudence, the Court echoed to the responsibility to protect, as well as to Article 48 and Article 54 of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (“Draft Articles of State Responsibility”). It appears that each State Party should have an obligation to intervene in the coming genocide incidence, perhaps as well as in the coming racial discrimination cases. Nevertheless it is unclear in what manner a state could implement it effectively.     

国际航空犯罪法人刑事责任及其国内立法转化研究

2010年《北京公约》和《北京议定书》首次规定了国际航空犯罪法人责任,法人责任以法人的高级管理人员代表法人实施劫持航空器等国际航空犯罪为要件,法人为此承担刑事、民事或行政责任。公约对法人犯罪及其责任的立法需要转化为国内法才能适用。世界各国国内法对法人犯罪及其责任的态度差别较大,英国、加拿大、法国等国刑法规定有航空犯罪的法人刑事责任,德国国内法规定有航空犯罪的法人行政责任,意大利刑法规定有航空犯罪的法人民事责任,我国仅在个别航空犯罪中规定有法人犯罪及其刑事责任。我国法人犯罪及其刑事责任的立法和理论具有较强的包容性,可在我国刑法中取消法人犯罪法定化限制,全面规定包括航空犯罪在内的法人犯罪及其刑事责任。     

Complicity in International Criminal Law and Canadian Refugee Law: A Comparison

International criminal law is normally seen as the purview ofcriminal prosecutions, either internationally or domestically.However, international criminal law is also increasingly beingapplied in refugee law. This is because the 1951 Refugee Conventioncontains an exclusion clause prohibiting asylum seekers fromobtaining refugee status if they have committed a crime againstpeace, a war crime or a crime against humanity. Thus, refugeelaw refers back to international criminal law; however, whileinternational criminal tribunals deal with persons who bearthe greatest responsibility, in actual practice persons whohave been excluded from refugee protection have been mostlyfrom the lower echelons of organizations involved in atrocities.This article, based on Canadian case law, examines the conceptsof complicity, aiding and abetting and joint criminal enterprisefrom both an international criminal law point of view and froma Canadian refugee law angle, in order to determine whetherthese notions have similar contents in the two jurisdictions.     

Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise

This article dissects the Tadi court's argument for findingthe doctrine of joint criminal enterprise in the ICTY Statute.The key arguments are identified and each are found to be eitherproblematic or insufficient to deduce the doctrine from thestatute: the object and purpose of the statute to punish majorwar criminals, the inherently collective nature of war crimesand genocide and the conviction of war criminals for joint enterprisesin World War II cases. The author criticizes this over-relianceon international case law and the insufficient attention tothe language of criminal statutes when interpreting conspiracydoctrines. The result of these mistakes is a doctrine of jointcriminal enterprise that fails to offer a sufficiently nuancedtreatment of intentionality, foreseeability and culpability.Specifically, the doctrine in its current form suffers fromthree conceptual deficiencies: (1) the mistaken attributionof criminal liability for contributors who do not intend tofurther the criminal purpose of the enterprise, (2) the impositionof criminal liability for the foreseeable acts of one's co-conspiratorsand (3) the mistaken claim that all members of a joint enterpriseare equally culpable for the actions of its members. The authorconcludes by briefly suggesting amendments to the Rome Statuteto rectify these deficiencies.     

A Court as the Process of Signification: Legal Semiotics of the International Court of Justice Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons

The International Court of Justice (ICJ) advisory opinion on the Legality of the Threat or Use of Nuclear Weapons in 1996 was a landmark case because, for the first time in history, the legal aspect of nuclear weapons was addressed. The decision has evoked controversies regarding the Court’s conclusion, the legal status of international humanitarian law in relation to nuclear weapons, and a newly introduced concept of state survival. While much legal scholarship discusses and criticizes the legal significance of the opinion, there has not been enough scholarship examining the Court’s specific choice of words and concepts that sustain its wider ideological and political position in the opinion. The paper argues that the Court’s vague and controversial logic is attributed to its confrontation with two international orders/codes: the legal order (or international law) and the political order (or state practice). The paper engages in legal semiotics as methodology to decode legal text and discover a deep structure that sustains networks of codes, according to which text is interpreted. Through the semiotic examination of three sets of key concepts (1) “permitted” and “prohibited,” (2) “threat of use” and “possession of the weapon,” and (3) “state survival,” the paper shows the ICJ’s confrontation with two orders/codes and eventual prioritization of the political order over the international legal order. The analysis of the opinion based on legal semiotics indicates an intimate and inseparable relationship between state practice and international law, which must be disentangled for the sake of the rule of law.     

国际法院在解决领土争端中的作用及困境评析

当今世界领土争端问题广泛存在,尤其以亚洲、非洲、拉丁美洲、欧洲等居多.国际法作为调整国与国之间关系的法律,在解决领土争端领域正日益发挥着重要作用.作为国际法的主要司法机构--国际法院逐步受到国际社会的关注,以国际法院懈决的领土争端案为依据,比较国际法院与其他政治谈判手段在解决领土争端问题上的不同之处;总结国际法院在审案过程中运用的基本法律原则,受理领土争端案的主要特征;分析在现实世界中国际法院解决领土争端所遭遇的困境以及对我国的启示.