INTERNATIONAL COURT OF JUSTICE
APPLICATION OF THE CONVENTION ON THE PREVENTION AND
PUNISHMENT OF THE CRIME OF GENOCIDE
THE GAMBIA
v.
MYANMAR
WRITTEN OBSERVATIONS OF THE GAMBIA ON
THE PRELIMINARY OBJECTIONS RAISED BY
MYANMAR
20 April 2021
i
TABLE OF CONTENTS
Chapter 1 Introduction ........................................................................................................ 1
Chapter 2 The Gambia is the Applicant .............................................................................. 3
I. The Gambia Satisfies the Requirements for Jurisdiction Ratione Personae ............... 5
II. The Gambia’s Claims are Admissible and Not an Abuse of Process ...................... 15
Chapter 3 The Gambia Has Standing Under the Genocide Convention ........................... 21
I. The Gambia’s Standing Stems from the Erga Omnes Partes Character of the
Obligations under the Genocide Convention ................................................................ 23
II. Article IX of the Genocide Convention Allows The Gambia to Submit Its Dispute
with Myanmar to the Court ........................................................................................... 27
A. Ordinary Meaning........................................................................................... 27
B. Object and Purpose ......................................................................................... 32
C. State Responsibility ........................................................................................ 39
III. Bangladesh’s Reservation to Article IX Has No Effect on The Gambia’s Right to
Submit Its Dispute with Myanmar to the Court ............................................................ 40
Chapter 4 Myanmar’s Reservation to Article VIII Is Irrelevant ....................................... 45
I. Article VIII Does Not Concern the Seisin of the Court ............................................ 46
A. The Ordinary Meaning of the Terms of Article VIII ...................................... 47
B. Object and Purpose ......................................................................................... 53
C. Travaux Préparatoires ................................................................................... 55
Chapter 5 A Dispute Exists Between The Gambia and Myanmar.................................... 61
I. The Applicable Law Regarding the Existence of a Dispute ...................................... 62
ii
II. A Dispute between the Parties Existed Prior to the Filing of The Gambia’s
Application .................................................................................................................... 64
A. The Parties’ Exchanges at the United Nations Demonstrate the Existence of a
Dispute between Them ............................................................................................. 64
B. The Gambia’s Note Verbale, and Myanmar’s Non-Response to It, Further
Demonstrate the Existence of a Dispute between the Parties ................................... 71
C. This Case Concerns The Gambia’s Dispute with Myanmar .......................... 76
III. Myanmar’s Attempt to Erect a Higher Bar for Establishing a Dispute Should be
Rejected......................................................................................................................... 77
SUBMISSIONS ................................................................................................................ 83
CERTIFICATION ............................................................................................................ 85
LIST OF ANNEXES ........................................................................................................ 87
1
CHAPTER 1
INTRODUCTION
1.1 Pursuant to the Court’s Order of 28 January 2021,1 the Republic of The Gambia
(“The Gambia”) submits its written statement of its observations and submissions on the
preliminary objections (“Preliminary Objections”) raised by the Republic of the Union of
Myanmar (“Myanmar”) on 20 January 2021.
1.2 Myanmar asserts four Preliminary Objections, all of which it had also raised during
the provisional measures hearings held before the Court on 10-12 December 2019. The
four Preliminary Objections are as follows:
First, “that the Court lacks jurisdiction, or alternatively that the application is
inadmissible, on the ground that the real applicant in these proceedings is the
Organisation of Islamic Cooperation (the ‘OIC’), an international organization”;2
Second, “that The Gambia, as a non-injured Contracting Party to the Genocide
Convention, lacks standing to bring the case against Myanmar under Article IX
thereof, because the Convention does not provide for the concept of an actio
popularis. Furthermore, The Gambia is also barred from bringing the case because
Bangladesh, as the Contracting Party specially affected by the alleged violations of
the Genocide Convention purportedly committed by Myanmar, has entered a
reservation to Article IX and has thereby waived its right to settle disputes relating
to the interpretation, application or fulfilment of the Convention by bringing a case
before the Court under that provision”;3
Third, “that The Gambia, as a non-injured Contracting Party to the Genocide
Convention, may not seise the Court with a case arising under that Convention since
1 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Order of 28 January 2021 on fixing of time limit on the Written Statement of Observations and
Submissions on Preliminary Objections.
2 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Preliminary Objections of the Republic of the Union of Myanmar (20 January 2021), para. 25
(emphasis omitted) [hereinafter POM].
3 Ibid., para. 27.
2
Myanmar, when acceding to the Convention, has entered a reservation to its Article
VIII”;4 and
Fourth, “that the Court lacks jurisdiction, or alternatively the application is
inadmissible, as there was no dispute between The Gambia and Myanmar on the
date of filing of the Application instituting proceedings”.5
1.3 The following chapters address each of Myanmar’s Preliminary Objections in turn.
Chapter 2 addresses the first preliminary objection and demonstrates that The Gambia is
the true Applicant in this case. Chapter 3 rebuts Myanmar’s second preliminary objection
and establishes that The Gambia has standing under the Genocide Convention to bring its
claims. Chapter 4 shows that Myanmar’s third preliminary objection regarding its
reservation to Article VIII of the Genocide Convention is baseless and that the reservation
is irrelevant to the Court’s seisin and jurisdiction. Finally, Chapter 5 addresses Myanmar’s
fourth preliminary objection and establishes that there was a dispute between The Gambia
and Myanmar prior to the filing of the Application.
1.4 As discussed in detail in the following chapters, none of the Preliminary Objections
has any merit. The Court unanimously rejected all four of these arguments in its Order of
23 January 2020, in application of the standards pertaining to the provisional measures
phase.6 The Gambia respectfully submits that the Court should once again reject all of
Myanmar’s Preliminary Objections and proceed to adjudicate The Gambia’s claims, as set
forth in its Application and Memorial, on the merits.
4 Ibid., para. 28.
5 Ibid., para. 29.
6 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia
v. Myanmar), Provisional Measures, Order of 23 January 2020 [hereinafter Provisional Measures Order].
3
CHAPTER 2
THE GAMBIA IS THE APPLICANT
2.1 Myanmar’s first preliminary objection is that:
“[T]he Court lacks jurisdiction, or alternatively that the
application is inadmissible, on the ground that the real
applicant in these proceedings is the Organisation of Islamic
Cooperation (the ‘OIC’), an international organization.
Because Article 34, paragraph 1, of the Statute of the Court
provides that ‘only States may be parties in cases before the
Court’, it cannot deal with a case in its contentious
jurisdiction that is in reality brought by an international
organization. Furthermore, because only States can be
parties to the Genocide Convention, the OIC as an
international organization is not a party to that Convention,
and therefore cannot invoke the compromissory clause in its
Article IX. The determination of who is the real applicant in
the case is a matter of substance, not a matter of form or
procedure, and it is absolutely clear from the record that in
substance the real party in this case is the OIC.”7
2.2 Myanmar acknowledges that this objection replicates the objection it raised in
opposition to The Gambia’s request for provisional measures.8 As the Court stated in its
Order of 23 January 2020, Myanmar:
“first argues that there is no dispute between the Parties in
view of the fact that the proceedings before the Court were
instituted by The Gambia, not on its own behalf, but rather
as a ‘proxy’ and ‘on behalf of’ the OIC”.9
2.3 The Court rejected Myanmar’s objection on a prima facie basis. It held:
7 POM, para. 25 (emphasis omitted).
8 Ibid., para. 24.
9 Provisional Measures Order, para. 23.
4
“With regard to Myanmar’s contention that, in bringing
before the Court its claims based on alleged violations of the
Genocide Convention, The Gambia acted as a ‘proxy’ for the
OIC in circumvention of Article 34 of the Statute, the Court
notes that the Applicant instituted proceedings in its own
name, and that it maintains that it has a dispute with
Myanmar regarding its own rights under the Convention. In
the view of the Court, the fact that The Gambia may have
sought and obtained the support of other States or
international organizations in its endeavour to seise the
Court does not preclude the existence between the Parties of
a dispute relating to the Genocide Convention.”10
2.4 Nothing in Myanmar’s first preliminary objection calls into question the
correctness of the Court’s prima facie determination. As the Court previously noted, The
Gambia brings the present case in its own name, in accordance with Article IX of the
Genocide Convention, to resolve The Gambia’s dispute with Myanmar concerning the
interpretation, application and fulfilment of the Convention. Neither the fact that
Myanmar’s genocidal actions against the Rohingya have also been the subject of sustained
attention from the wider international community, including the OIC, nor the fact that the
OIC has supported The Gambia in connection with efforts to hold Myanmar responsible
for its breaches of the Genocide Convention, vitiates The Gambia’s right as a party to the
Statute of the Court and the Genocide Convention to hold Myanmar accountable through
the present proceedings. The Court should therefore reject Myanmar’s objection and
confirm its jurisdiction to adjudicate The Gambia’s claims.
2.5 This Chapter is comprised of two sections. The Gambia shows in Section I that it
satisfies the only relevant requirements for jurisdiction ratione personae, namely that The
Gambia, as the Applicant, must be a Member of the United Nations and thus a party to the
Statute of the Court. Moreover, The Gambia has a pending dispute with Myanmar, which
10 Ibid., para. 25.
5
is reflected, inter alia, in direct bilateral exchanges that The Gambia carried out in its own
name with Myanmar. The Gambia—not the OIC, nor anyone else—is responsible for all
aspects of the control and direction of the case. The Gambia alone decided—and had the
right to decide—all matters concerning the case’s prosecution, including, among other
things, whether and when to submit the Application; the claims set out therein; and the
appointment of The Gambia’s Agent and counsel. No other body or entity, including the
OIC, did, or could, do so.
2.6 In Section II, The Gambia demonstrates that its claims are fully admissible and
that, contrary to Myanmar’s contentions, the proceedings are the antithesis of an abuse of
process. Indeed, The Gambia’s seisin of the Court—and the Court’s subsequent indication
of provisional measures—has been welcomed by the UN Secretary-General and the UN
General Assembly, among many others, as a critical step for securing protection of the
Rohingya group in Myanmar against further efforts by Myanmar’s armed forces, the
Tatmadaw, to destroy them in whole or in part.
I. The Gambia Satisfies the Requirements for Jurisdiction Ratione Personae
2.7 The Gambia satisfies the only requirements for jurisdiction ratione personae
applicable here. Article 92 of the UN Charter, which establishes the Court as the principal
judicial organ of the United Nations, provides that the Court “shall function in accordance
with the annexed Statute”. Chapter II of the Statute governs the Competence of the Court.
Article 34(1) provides: “Only states may be parties in cases before the Court.”11 As
Rosenne has observed, “[s]tatehood is the essential prerequisite for any entity to be a party
in any contentious case in the Court”, and Article 34(1) “declares in general terms the basic
condition ratione personae to be met before the Court can exercise any jurisdiction
11 Statute of the International Court of Justice, art. 34(1).
6
whatsoever”.12 It is beyond dispute that The Gambia, which attained independence in 1965,
is a State and thus satisfies Article 34(1).
2.8 The only other requirement for jurisdiction ratione personae is that The Gambia
must be linked to the Statute of the Court. For present purposes, the relevant provision of
the Court’s Statute is Article 35(1), which provides: “The Court shall be open to the states
parties to the present Statute.”13 The Gambia satisfies that requirement because, under
Article 93(1) of the UN Charter, “[a]ll Members of the United Nations are ipso facto parties
to the Statute of the International Court of Justice”. The Gambia has been a Member of the
United Nations since 21 September 1965.14 The Gambia is thus ipso facto a party to the
Statute of the Court as well.
2.9 Myanmar acknowledges, as it must, that “The Gambia is formally named as the
applicant in the Application instituting proceedings”.15 Indeed, Myanmar’s Preliminary
Objections do not contest any of the facts relevant to jurisdiction rationae personae that
The Gambia set out in its Application. As The Gambia stated therein:
“The Gambia and Myanmar are both Members of the United
Nations and therefore bound by the Statute of the Court,
including Article 36(1), which provides that the Court’s
jurisdiction ‘comprises … all matters specially provided for
… in treaties and conventions in force’.
The Gambia and Myanmar are also parties to the Genocide
Convention. Myanmar signed the Genocide Convention on
30 December 1949 and deposited its instrument of
12 Shabtai Rosenne, The Law and Practice of the International Court, 1920-2005 (Martinus Nijhoff
Publishers 2006), pp. 587-588. WOG, Annex 19.
13 Statute of the International Court of Justice, art. 35(1).
14 International Court of Justice, States Entitled to Appear Before the Court, available at https://www.icjcij.
org/en/states-entitled-to-appear.
15 POM, para. 26.
7
ratification on 14 March 1956. The Gambia deposited its
instrument of accession on 29 December 1978. While the
Genocide Convention entered into force on 12 January 1951,
it became applicable between the Parties ninety days after 29
December 1978, pursuant to Article XIII of the
Convention.”16
2.10 These undisputed facts foreclose Myanmar’s first preliminary objection. As
Rosenne has observed: “Every State which is a party to the Statute has the right to …
invoke the jurisdiction of the Court in accordance with the general conditions for the
exercise of that jurisdiction”.17 The Gambia, as a party to the Statute of the Court, has
availed itself of that right, in accordance with Myanmar’s consent to the Court’s
jurisdiction contained in Article IX of the Genocide Convention. The requirements for
jurisdiction ratione persone are therefore satisfied.
2.11 There is no merit whatsoever to Myanmar’s contention that The Gambia is merely
the “nominal applicant in [this] case”, because, it argues, “as a matter of substance, the real
applicant is the OIC”.18 Myanmar advances that argument on the ground that The Gambia
filed the Application at the behest of the OIC. Leaving aside the fact that, as The Gambia
shows below, Myanmar’s contention has no basis in fact, it also fails to recognize the
Court’s long-established jurisprudence that a State’s motivation for commencing litigation
before the Court is irrelevant to matters of jurisdiction. In rejecting a challenge to its
jurisdiction, the Court held in Nicaragua v. Honduras:
“The purpose of recourse to the Court is the peaceful
settlement of such disputes; the Court’s judgment is a legal
16 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia
v. Myanmar), Application Instituting Proceedings and Request for Provisional Measures (11 November
2019), paras. 16-17 [hereinafter Application].
17 Shabtai Rosenne, The Law and Practice of the International Court, 1920-2005 (Martinus Nijhoff
Publishers 2006), pp. 601-602. WOG, Annex 19.
18 POM, para. 26.
8
pronouncement, and it cannot concern itself with the
political motivation which may lead a State at a particular
time, or in particular circumstances, to choose judicial
settlement.”19
2.12 The Gambia, not the OIC, is the only Applicant here. It was The Gambia’s Minister
of Foreign Affairs who wrote to the Registrar of the Court on 11 November 2019 informing
him that:
“the Government of the Republic of The Gambia has
appointed H.E. Mr. Abubacarr Marie Tambadou, Attorney
General and Minister of Justice of the Republic of The
Gambia, as its Agent for the purposes of filing an
Application instituting proceedings against the Republic of
the Union of Myanmar concerning the latter’s violation of
the Convention on the Prevention and Punishment of the
Crime of Genocide, and of representing the Republic of The
Gambia in all aspects of the aforementioned proceedings”.20
2.13 Likewise, it was Minister Tambadou who, in his capacity as the Agent of The
Gambia, notified the Court that, “[o]n behalf of the Republic of The Gambia”, he was
transmitting “two originals of an Application instituting proceedings” against Myanmar.21
And, further, it was also Minister Tambadou who, as The Gambia’s Agent, informed the
Registrar of the Court that “[t]he undersigned, being duly authorized by the Government
19 Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1998, para. 52 (emphasis added). As one commentator has observed in regard to
the Court’s holding that “any possible ‘political motivation’ of an application is irrelevant for the discharge
of its judicial function”, this “would seem to be the final word of the ICJ on the issue”, and “[t]he Court
would emasculate itself if it refrained from agreeing to clarify the legal position in disputes of great
importance for the peace and security of the world”. Christian Tomuschat, ‘Competence of the Court, Article
36’ in Zimmermann, Tams, Oellers-Frahm, Tomuschat (eds), The Statute of the International Court of
Justice: A Commentary (3rd edition, Oxford University Press 2019), p. 725. WOG, Annex 22.
20 Letter from H.E. Dr. Mamadou Tangara, Minister of Foreign Affairs of The Gambia to Mr. Philippe Gautier,
Registrar of the International Court of Justice (11 November 2019).
21 Letter from H.E. Mr. Abubacarr Marie Tambadou, Agent of The Gambia to Mr. Philippe Gautier, Registrar
of the International Court of Justice (11 November 2019).
9
of the Republic of The Gambia”, has “the honour to submit this Application instituting
proceedings in the name of the Republic of The Gambia”.22
2.14 These actions by The Gambia to initiate proceedings against Myanmar reflect the
fact that there was, and remains, an unresolved dispute between those parties to the
Genocide Convention concerning Myanmar’s violations of that instrument and, more
broadly, The Gambia’s longstanding and often expressed concerns about the gross human
rights abuses that had been committed by Myanmar against the Rohingya.
2.15 The Gambia raised these concerns in a variety of international fora. For instance,
on 25 September 2018, President of The Gambia stated to the UN General Assembly: “As
the upcoming Chair of the next OIC Summit, The Gambia has undertaken, through a
Resolution, to champion an accountability mechanism that would ensure that perpetrators
of the terrible crimes against the Rohingya Muslims are brought to book.”23
2.16 The Gambia also raised its dispute with Myanmar bilaterally. In a Note Verbale
dated 11 October 2019 from The Gambia’s Permanent Mission to the United Nations to
the Permanent Mission of Myanmar, The Gambia made clear that The Gambia was in
dispute with Myanmar concerning Myanmar’s obligations under the Genocide Convention.
The Gambia’s Note Verbale stated, among other things:
“The Republic of The Gambia is deeply troubled by the findings of the UN
IIFFMM, and in particular its findings regarding the ongoing genocide against the
Rohingya people of the Republic of the Union of Myanmar in violation of
Myanmar’s obligations under the Convention on the Prevention and Punishment of
the Crime of Genocide ….”
22 Application, preamble and para. 1 (emphasis added).
23 UN General Assembly, 73rd Session, 7th Plenary Meeting, Address by Mr. Adama Barrow, President of
the Republic of the Gambia, UN Doc. A/73/PV.7 (25 September 2018), p. 6 (emphasis added). MG (23
October 2020), Vol. III, Annex 41.
10
“The Gambia considers those findings well-supported by the evidence and highly
credible, and is disturbed by Myanmar’s absolute denial of those findings and its
refusal to acknowledge and remedy its responsibility for the ongoing genocide
against the Rohingya population of Myanmar, as required under the Genocide
Convention and customary international law.”
“The Gambia fully endorses OIC Resolution No. 4/26-MM of 2 March 2019,
which ‘Calls upon the Government of Myanmar: (a) To honor its obligations under
International Law and Human Rights covenants, and to take all measures to
immediately halt all vestiges and manifestations of the practice of genocide against
Rohingya Muslims’.”
“The Gambia emphatically rejects Myanmar’s denial of its responsibility for the
ongoing genocide against Myanmar’s Rohingya population, and its refusal to fulfill
its obligations under the Genocide Convention and customary international law.”
“With somber reflection on the goals of the Genocide Convention and its
obligations on all States, The Gambia understands Myanmar to be in ongoing
breach of those obligations under the Convention and under customary
international law.”
“The Gambia insists that Myanmar take all necessary actions to comply with these
obligations, including but not limited to its obligations to make reparations to the
vicitims and to provide guarantees and assurances of non-repetition.”24
2.17 The Gambia makes no secret of the fact that, to secure protection of the Rohingya
and hold Myanmar to account for its international crimes against them, it sought and
obtained the support of the Organisation of Islamic Cooperation, whose Objectives and
Principles include “safeguard[ing] the rights, dignity and religious and cultural identity of
Muslim communities and minorities in non-Member States”.25
24 Note Verbale from Permanent Mission of the Republic of The Gambia to the United Nations to Permanent
Mission of the Republic of the Union of Myanmar to the United Nations (11 October 2019) (emphasis added).
OG (2 December 2019), Annex 1.
25 Charter of the Islamic Conference, 914 UNTS 110, art. 1(16), available at
https://treaties.un.org/doc/Publication/UNTS/Volume%20914/volume-914-I-… (emphasis
omitted) [hereinafter OIC Charter].
11
2.18 To that end, The Gambia was instrumental in obtaining, in May 2018, at the Forty-
Fifth Session of the OIC Council of Foreign Ministers, the establishment of an OIC Ad
Hoc Ministerial Committee on Accountability for Human Rights Violations Against the
Rohingya. In recognition of The Gambia’s leadership, it was appointed Chair of the
Committee.26
2.19 The Ad Hoc Committee’s mandate is to:
(a) “Engage to ensure accountability and justice for gross
violations of international human rights and
humanitarian laws and principles;
(b) Assist in information gathering and evidence collection
for accountability purposes
(c) Mobilize and coordinate international political support
for accountability for the Human Rights Violations
against the Rohingyas in Myanmar
(d) Collaborate with international bodies, such as, [O]ffice
of the United Nations High Commissioner for Human
Rights, United Nations Security Council, and other
international regional mechanisms.”27
2.20 The Ad Hoc Ministerial Committee’s mandate did not include instituting or
participating in international (or other) dispute settlement procedures on behalf of the OIC.
Under The Gambia’s leadership, the Committee ultimately endorsed The Gambia’s
decision to initiate, on its own behalf, proceedings against Myanmar in the International
26 Organisation of Islamic Cooperation, 45th Session of the Council of Foreign Ministers of the Organisation
of Islamic Cooperation, Dhaka Declaration (6 May 2018), para. 17. MG (23 October 2020), Vol. VII, Annex
203.
27 Organisation of Islamic Cooperation, Resolution No. 59/45-POL on The Establishment of an OIC Ad hoc
Ministerial Committee on Accountability for Human Rights Violations Against the Rohingyas, OIC Doc.
OIC/ACM/AD-HOC ACCOUNTABILITY/REPORT2019/FINAL (May 2018). POM (20 January 2021),
Vol. IV, Annex 91.
12
Court of Justice under the Genocide Convention.28 The decision to file the case was The
Gambia’s alone, and The Gambia did so on its own behalf and in its own name, appointing
its own Attorney General and Minister of Justice “to represent The Gambia” in the
proceedings before the Court.29
2.21 The fact that the OIC supports The Gambia in its prosecution of the case cannot
mean that the OIC somehow becomes the Applicant. The OIC itself does not consider that
to be the case. This is clear, for instance, in the Ad Hoc Ministerial Committee’s report on
its meeting on 25 September 2019, where the Committee recommended adding to the
agenda of the forthcoming session of the OIC Council of Foreign Ministers an “item on
pledges for the legal case undertaken by The Gambia”.30 During the same meeting, the
Committee also “acknowledged The Gambia’s prerogative to select a legal firm to pursue
the case in the ICJ and took note of The Gambia’s choice of the legal firm”.31
2.22 The Gambia’s public statements upon the filing of the Application likewise make
clear that its dispute with Myanmar is raised on The Gambia’s own behalf and that the
OIC’s role is limited to providing support. In a press release issued on the day of the filing
of its Application, The Gamia’s Ministry of Justice stated:
“The Republic of The Gambia has filed today before the
International Court of Justice in The Hague a lawsuit
alleging that the Republic of the Union of Myanmar has
28 Organisation of Islamic Cooperation, Report of the Ad Hoc Ministerial Committee on Human Rights
Violations Against the Rohingya, OIC Doc. OIC/ACM/AD-HOCACCOUNTABILITY/REPORT-
2019/FINAL (25 September 2019), paras. 7-8. POM (20 January 2021), Vol. IV, Annex 97.
29 The Gambia, Office of the President, Press Release: Cabinet approves transformation of GTTI into
University of Science, Technology and Engineering (6 July 2019) (emphasis added). POM (20 January 2021),
Vol. IV, Annex 120.
30 Organisation of Islamic Cooperation, Report of the Ad Hoc Ministerial Committee on Human Rights
Violations Against the Rohingya, OIC Doc. OIC/ACM/AD-HOCACCOUNTABILITY/REPORT-
2019/FINAL (25 September 2019), para. 12 (emphasis added). POM (20 January 2021), Vol. IV, Annex 97.
31 Ibid.
13
violated its obligations under the 1948 Convention on the
Prevention and Punishment of the Crime of Genocide for its
genocidal actions against the Rohingya People, a Muslim
minority that lives in Myanmar .… The Gambia has stepped
forward, on behalf of the 57 Member States of the
Organiation of Islamic Cooperation, and with the mandate
of the Organization, to hold Myanmar accountable for its
genocidal crimes against the Rohingya .… The Gambia has
also asked the ICJ to impose Provisional Measures, as a
matter of extreme urgency, to protect the Rohingya against
further harm during the pendency of this case by ordering
Myanmar to stop all of its genocidal conduct immediately.
The Gambia calls on the international community to support
its legal effort, and to redouble all diplomatic and political
efforts to cause Myanmar to stop, and never to repeat, its
genocide against the Rohingya, and to assist in efforts to
ensure justice and accountability for the crimes committed
against them.”32
2.23 The Embassy of Bangladesh in The Hague, in a statement entitled Bangladesh
supports OIC backed initiative by The Gambia in the International Court of Justice,
reported the following statement by The Gambia’s Agent upon the filing of the
Application:
“The Minister of Justice of The Gambia Abubakar
Tambadou termed the filing of the application by The
Gambia against Myanmar before the ICJ as a historic
occasion and expressed his sincere appreciation to the OIC
for its support and endorsement to The Gambia to ensure
accountability for the human rights violations against the
Rohingyas in Myanmar. Referring to his visit to R[o]hingya
camps in Cox’s Bazar in May 2018 as the leader of the
Gambian delegation to the OIC Council of Foreign
Minister’s Meeting held in Bangladesh, The Gambian
Minister shared his experience of discussion with the victims
of atrocities and expressed his resolve that The Gambia, with
32 The Republic of The Gambia, Ministry of Justice, Press Release (11 November 2019) (emphasis added).
WOG, Annex 2.
14
the support of the OIC, shall hold Myanmar accountable for
its committing genocide against the Rohingyas. He sought
political, diplomatic and moral support from the
international community to ensure justice for the Rohingya
genocide victims so that such genocide cannot be repeated
in the Rakhine State or elsewhere.”33
2.24 Resolutions of the OIC subsequent to the filing of The Gambia’s Application
confirm that the OIC’s role is limited to supporting The Gambia’s litigation efforts. For
example, the OIC Council of Foreign Ministers resolved at its Forty-Seventh Session, in
November 2020, that the Ad Hoc Committee would “[f]ollow up the case at the ICJ in
support of The Gambia till a final verdict is issued”.34 The Council of Foreign Ministers
similarly “[c]all[ed] upon all OIC Member states to stand firmly with The Gambia and
provide all necessary support, including financial assistance for the Legal case, on a
voluntary basis, in accordance with the principles of burden-sharing and shared
responsibility, and in the spirit of Islamic solidarity”.35
2.25 Indeed, the OIC has no institutional competence to direct The Gambia to undertake
any actions, much less dictate where, when or how to litigate before the Court. Article 6 of
the Charter of the OIC establishes the Islamic Summit as the organisation’s “supreme
authority”.36 Under Article 7, the competence of the Islamic Summit is limited to
“deliberat[ing], tak[ing] policy decisions and provid[ing] guidance on all issues pertaining
33 Embassy of Bangladesh in the Netherlands, Press Release: Bangladesh supports OIC backed initiative by
The Gambia in the International Court of Justice (ICJ) (12 November 2019) (emphasis added). POM (20
January 2021), Vol. IV, Annex 112.
34 Organisation of Islamic Cooperation, Resolution No. 59/47-POL on The Work of the OIC Ad hoc
Ministerial Committee on Accountability for Human Rights Violations Against the Rohingyas, OIC Doc.
OIC/CFM-47/2020/POL/RES/FINAL (November 2020), para. 7(e) (emphasis added). POM (20 January
2021), Vol. IV, Annex 106.
35 Organisation of Islamic Cooperation, Resolution No. 4/47-MM on the Situation of the Muslim Community
in Myanmar, OIC Doc. OIC/CFM-47/ 20/MM/RES/FINAL (November 2020), para. 42 (emphasis omitted).
POM (20 January 2021), Vol. IV, Annex 107.
36 OIC Charter, art. 6.
15
to the realization of the objectives as provided for in the Charter and consider[ing] other
issues of concern to the Member States and the Ummah”.37 Nor does the OIC’s Council of
Foreign Ministers have any authority to instruct The Gambia.38
2.26 In sum, The Gambia—a party to both the Statute of the Court and the Genocide
Convention—has brought these proceedings in its own name and on its own behalf. All
requirements for jurisdiction ratione personae are satisfied. The fact that The Gambia
enjoys the support of the OIC—as well as that of many other States—can have no bearing
on the Court’s jurisdiction.
II. The Gambia’s Claims are Admissible and Not an Abuse of Process
2.27 Myanmar is not helped by repackaging its argument on jurisdiction as a challenge
to admissibility. It argues: “a claim or application should not be admissible if it amounts in
practice to a direct circumvention of an express limitation on the Court’s jurisdiction, even
if the Court formally would have jurisdiction to deal with it”.39 Myanmar cites no authority
in support of its admissibility objection, which bears no resemblance to any that the Court
has recognized as a ground for declining to exercise otherwise well-founded jurisdiction,
37 Ibid., art. 7. Nor, obviously, is The Gambia one of the organs of the OIC. See International Law
Commission, Draft Articles on the Responsibility of International Organizations (2011) reproduced in
Yearbook of the International Law Commission 2011, Vol II(2), available at
https://legal.un.org/ilc/texts/instruments/english/commentaries/9_11_20…. Article 2(c) defines an organ
of an international organisation as “any person or entity which has that status in accordance with the rules of
the organization”. As the commentary on draft Article 2(c) observes, “[s]ome constituent instruments contain
a list of organs”. The OIC is such an international organisation. The organisation’s organs are enumerated in
Article 5 of the OIC Charter.
38 OIC Charter, art. 10 (establishing the functions of the OIC Council of Foreign Ministers).
39 POM, para. 187.
16
such as the absence of an indispensable third party,40 the hypothetical nature41 or mootness
of a case,42 or an applicant’s lack of legal interest in the matter.43
2.28 Rather, Myanmar’s objection to admissibility appears to be based on the contention
that The Gambia has somehow abused process by exercising its right under the Genocide
Convention to seek to hold Myanmar to account for its breaches thereunder by invoking
the Court’s jurisdiction under Article IX.44
2.29 There is no merit whatsoever to this argument. As Myanmar itself recognizes, abuse
of process is limited to those narrow circumstances where a State acts with:
“fraudulent, malevolent, dilatory, vexatious, or frivolous
intent, with the aim to harm another or to secure an undue
advantage to oneself, with the intent to deprive the
proceedings (or some other related proceedings) of their
proper object and purpose or outcome, or with the intent to
use the proceedings for aims alien to the ones for which the
procedural rights at stake have been granted (e.g., pure
propaganda)”.45
2.30 This plainly does not describe The Gambia’s case. Indeed, The Gambia is deeply
gratified by the reception with which the case has been received, and especially by the
40 Case of the Monetary Gold Removed from Rome in 1943 (Italy v. France and others), Preliminary
Question, Judgment, I.C.J. Reports 1954.
41 Case Concerning the Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections,
Judgment, I.C.J. Reports 1963.
42 Nuclear Tests (Australia/New Zealand v. France), Judgment, I.C.J. Reports 1974.
43 Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J. Reports
2012.
44 POM, paras. 190 et seq.
45 Ibid., para. 192, quoting Robert Kolb, ‘General Principles of Procedural Law’ in Zimmermann, Tams,
Oellers-Frahm, Tomuschat (eds), The Statute of the International Court of Justice: A Commentary (3rd
edition, Oxford University Press 2019), pp. 998-999. POM (20 January 2021), Vol. II, Annex 25.
17
international community’s recognition of the significant results that have been achieved by
the Court’s indication of provisional measures.
2.31 For example, on 23 January 2020, the UN Secretary-General released the following
statement:
“The Secretary-General welcomes the Order of the
International Court of Justice, indicating provisional
measures in the case of The Gambia against Myanmar on
the alleged breaches of the Convention on the Prevention
and Punishment of the Crime of Genocide.
The Secretary-General notes the Court’s unanimous
decision to order Myanmar, in accordance with its
obligations under the Genocide Convention, ‘to take all
measures within its power’ in relation to the members of the
Rohingya group in its territory, to prevent the commission of
acts within the scope of Article II of the Convention,
including killing, causing serious bodily or mental harm,
deliberately inflicting conditions of life calculated to bring
about the group’s destruction and imposing measures
intended to prevent births.
He also notes the Court’s instruction to Myanmar to ensure
that its military, as well as any irregular armed units directed
or supported by it and any organizations and persons subject
to its control, do not commit such acts; also, that they do not
conspire to commit genocide, do not directly and publicly
incite the commission of genocide, do not attempt to commit
genocide and are not complicit in genocide.
Further, the Secretary-General notes the Court’s order to
Myanmar to ensure the preservation of evidence related to
allegations of acts within the scope of the Genocide
Convention, as well as to report to the Court on the
implementation of all provisional measures on a regular
basis.
The Secretary-General strongly supports the use of peaceful
means to settle international disputes. He further recalls that,
pursuant to the Charter and to the Statute of the Court,
18
decisions of the Court are binding and trusts that Myanmar
will duly comply with the Order from the Court.”46
2.32 On 31 December 2020, the UN General Assembly adopted a similar resolution:
“Welcoming the order of the International Court of Justice
of 23 January 2020 indicating provisional measures in the
case lodged by the Gambia against Myanmar on the
application of the Convention on the Prevention and
Punishment of the Crime of Genocide, which concluded that,
prima facie, the Court had jurisdiction to deal with the case,
which found that the Rohingya in Myanmar appeared to
constitute a ‘protected group’ within the meaning of article
2 of the Convention, and that there was a real and imminent
risk of irreparable prejudice to the rights of the Rohingya in
Myanmar, and taking note that Myanmar submitted its report
in response to the Court’s order on 22 May 2020, and
measures adopted in this regard”.47
2.33 Likewise, on 10 February 2021, the Deputy UN High Commissioner for Human
Rights, at the UN Human Rights Council’s Intersessional Meeting on the Prevention of
Genocide, stated:
“Two years ago, we celebrated the 70th anniversary of the
Convention on the Prevention and Punishment of the Crime
of Genocide. Adopted on 9 December 1948 by the United
Nations General Assembly, it was the first international
treaty of a new era characterised by a vision of the world
where the atrocities committed during the Second World
War would never be tolerated again.”48
46 United Nations, Press Release: Secretary-General Welcomes International Court of Justice Order on The
Gambia v. Myanmar Genocide Convention Case (23 January 2020) (emphasis added). WOG, Annex 3.
47 UN General Assembly, Resolution adopted on 31 December 2020 on Situation of human rights of Rohingya
Muslims and other minorities in Myanmar, UN Doc. A/RES/75/238 (4 January 2021), available at
https://undocs.org/en/A/RES/75/238 (emphasis added).
48 UN OHCHR, Human Rights Council Intersessional Meeting on the Prevention of Genocide: Statement by
Nada Al-Nashif, Deputy High Commissioner for Human Rights (10 February 2021). WOG, Annex 17.
19
2.34 The Deputy Human Rights Commissioner continued:
“States should also consider how they can contribute to
accountability for atrocity crimes committed in other States,
including through supporting the work of the United Nations
or exercising universal jurisdiction - as we saw with the
landmark case brought by The Gambia against Myanmar
before the IC[J] on the basis of alleged violations of the
Genocide Convention. [] It will certainly increase the
understanding of the role that States must play in preventing
and punishing acts of genocide committed beyond their
frontiers.”49
2.35 There is, accordingly, nothing abusive about The Gambia’s initiation of these
proceedings.
***
For these reasons, Myanmar’s first preliminary objection has no merit, and should be
rejected by the Court.
49 Ibid. (emphasis added).
20
21
CHAPTER 3
THE GAMBIA HAS STANDING UNDER THE GENOCIDE CONVENTION
3.1 Myanmar’s second preliminary objection is that:
“The Gambia does not have standing to bring this case
before the Court under Article IX of the Genocide
Convention either because the Genocide Convention does
not enshrine the concept of an actio popularis at all or
because in the specific circumstances of the case at hand The
Gambia is barred from so doing because Bangladesh, as the
State specially affected by the alleged violations of the
Genocide Convention, has entered a reservation to Article
IX of the Convention”.50
3.2 By its Order indicating provisional measures, the Court rejected this objection on a
prima facie basis.51
3.3 In considering Myanmar’s objection, the Court “recalled” that, in its Advisory
Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime
of Genocide, it had observed that:
“[i]n such a convention the contracting States do not have
any interests of their own; they merely have, one and all, a
common interest, namely, the accomplishment of those high
purposes which are the raison d’être of the convention.
Consequently, in a convention of this type one cannot speak
of individual advantages or disadvantages to States, or of the
maintenance of a perfect contractual balance between rights
and duties. The high ideals which inspired the Convention
50 POM, para. 349.
51 Provisional Measures Order, paras. 39, 42.
22
provide, by virtue of the common will of the parties, the
foundation and measure of all its provisions.”52
3.4 The Court determined:
“In view of their shared values, all the States parties to the
Genocide Convention have a common interest to ensure that
acts of genocide are prevented and that, if they occur, their
authors do not enjoy impunity.”53
3.5 The Court then explained that this “common interest implies that the obligations in
question are owed by any State party to all the other States parties to the Convention”.54 In
that connection, the Court noted that, “[i]n its Judgment in the case concerning Questions
relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal)”, it had “observed
that the relevant provisions in the Convention against Torture” are “similar” to “those in
the Genocide Convention” and that “these provisions generat[e] ‘obligations [which] may
be defined as ‘obligations erga omnes partes’ in the sense that each State party has an
interest in compliance with them in any given case’”.55
3.6 The Court accordingly rejected Myanmar’s objection because:
“It follows that any State party to the Genocide Convention,
and not only a specially affected State, may invoke the
responsibility of another State party with a view to
ascertaining the alleged failure to comply with its obligations
erga omnes partes, and to bring that failure to an end.”56
52 Ibid., para. 41 citing Reservations to the Convention on Genocide, Advisory Opinion, I.C.J. Reports 1951,
p. 23.
53 Ibid.
54 Ibid.
55 Ibid. citing Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Merits,
Judgment, I.C.J. Reports 2012, p. 449, para. 68 (last brackets in original).
56 Ibid.
23
3.7 The Gambia respectfully submits that the Court should once again reject
Myanmar’s objection, and confirm The Gambia’s standing in these proceedings, which, as
the Court observed in its Order of 23 January 2020, stems from its status as a party to the
Genocide Convention and the erga omnes partes character of the obligations owed by
Myanmar under the Convention.
I. The Gambia’s Standing Stems from the Erga Omnes Partes Character of the
Obligations under the Genocide Convention
3.8 Myanmar does not challenge directly the Court’s jurisprudence constante on the
erga omnes partes character of the obligations it owes under the Genocide Convention.
Instead, Myanmar bases its second preliminary objection on a purported “crucial
distinction” between “the right to invoke State responsibility under general international
law and standing before the Court”.57 According to Myanmar, a State Party to the Genocide
Convention, like The Gambia, may have the right to invoke Myanmar’s responsibility
under the Convention, but this does not mean that The Gambia has standing to commence
proceedings before the Court under Article IX. Rather, Myanmar argues, “only States that
are specially affected by an alleged breach of a treaty containing obligations erga omnes
partes have standing to bring a claim before the Court”.58 In other words, according to
Myanmar, notwithstanding the erga omnes partes obligations of the Convention, The
Gambia can only invoke the Court’s jurisdiction in regard to Myanmar’s breaches of those
obligations if The Gambia is specially affected by alleged breaches of the Convention,
namely that it has suffered direct injury as a result of them.
57 POM, para. 215.
58 Ibid., para. 221.
24
3.9 The logical contradiction in Myanmar’s approach, which would effectively deprive
the Convention’s obligations of their erga omnes character by requiring a special or direct
injury to a party before it can seize the Court under Article IX, is obvious. Obligations are
erga omnes when all treaty parties have a fundamental interest in their fulfilment, such that
a breach necessarily constitutes an injury to those interests, without a showing that they
have been specially affected by the breach. Accordingly, if the obligations under the
Convention are erga omnes partes, which Myanmar appears to accept, then, logically, a
breach of those obligations necessarily injures omnes partes, conferring on each party a
standing to sue under Article IX. If it were otherwise, and only a State that is “specially
affected”—which, to Myanmar, means “directly injured”—could have standing to sue, in
what sense could the obligations under the Convention be truly said to be erga omnes
partes?
3.10 Myanmar’s attempt to separate standing before the Court from the right to invoke
responsibility, in a case where responsibility arises from breach of erga omnes partes
obligations, is thus artificial and flawed. If a State has the right—whether as a specially
injured State or as a non-specially injured State—to invoke the responsibility of another
State for breach of obligations that are erga omnes partes, then that State necessarily has
standing to submit the dispute resulting from such breach to the Court because it has a legal
interest in remedying the violation.
3.11 Myanmar argues that “the present case is fundamentally different both to previous
cases dealt with by the Court under the Genocide Convention, as well as to the Obligation
to Prosecute or Extradite case”.59
59 Ibid., para. 211.
25
3.12 It may indeed be different, in the sense that all cases are different. It is not, however,
fundamentally different.
3.13 It is a fact that this case is the first brought before the Court under the Genocide
Convention by a State whose nationals are not the victims of the acts of genocide
committed by the Respondent State. However, this difference with the Court’s previous
cases is irrelevant because its prior judgments do not contain any finding that limits the
Court’s jurisdiction to States that have been—to use Myanmar’s terminology—“specially
affected” by the Respondent State’s breaches of the Genocide Convention.
3.14 Myanmar’s attempt to distinguish Belgium v. Senegal is equally without merit. The
fact that Belgium might have considered itself injured or specially affected is entirely
irrelevant because, as Myanmar recognizes, the Court made no “positive finding as to the
status of Belgium as a specially-affected State under the Convention Against Torture”.60
In that case, the Court found Belgium to have standing solely on the basis of the erga omnes
partes character of the obligations allegedly breached. The Court stressed that this means
“that each State party has an interest in compliance with them in any given case” and that
“[i]n this respect, the relevant provisions of the Convention against Torture are similar to
those of the [Genocide] Convention”.61 Each State party thus has an “entitlement … to
make a claim concerning … an alleged breach by another State party” because of their
“common interest in compliance with the relevant obligations”.62 Indeed, in rejecting the
position Myanmar now advances, the Court stressed that, because the obligations were of
60 Ibid., para. 246.
61 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Merits, Judgment,
I.C.J. Reports 2012, p. 449, para. 68. See also Provisional Measures Order, para. 41.
62 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Merits, Judgment,
I.C.J. Reports 2012, p. 450, para. 69.
26
such character, “[i]f a special interest were required” to have standing, “in many cases no
State would be in the position to make such a claim”.63
3.15 Despite the affirmation by the Court that the erga omnes partes obligations under
the Convention against Torture are “similar” to those of the Genocide Convention,64
Myanmar argues that the obligations of the Torture Convention “are critically different to
those contained in the Genocide Convention”.65 According to Myanmar, this is because,
unlike the Torture Convention, which “embodies the principle of universal jurisdiction”,66
the Genocide Convention only contains “an obligation to exercise territorial jurisdiction”.67
On the basis of this purported difference, Myanmar argues that because the Torture
Convention “envisage[s] [a] form of enforcement by the Contracting Parties, other than by
those on whose territory the acts in question were committed”, that instrument “contain[s]
an implied agreement to accept the standing of a non-injured State to bring cases before
the Court” while the Genocide Convention does not.68
3.16 Myanmar’s argument is contrived and erroneous. The alleged difference between
the two conventions has no bearing whatsoever on The Gambia’s standing in this case.
Indeed, in contrast to the position of Belgium in relation to acts of torture committed in
Chad, The Gambia does not request for itself “the ability to enforce the prohibition of acts
of genocide arising under the Convention when committed on the territory of Myanmar”.69
Nor does The Gambia claim that it has the right under the Genocide Convention to
63 Ibid.
64 Ibid., p. 449, para. 68. See also Provisional Measures Order, para. 41.
65 POM, para. 241.
66 Ibid., para. 245.
67 Ibid., para. 248 (emphasis omitted).
68 Ibid.
69 Ibid., para. 249.
27
prosecute those responsible for acts of genocide against the Rohingya or that those
perpetrators must be extradited to The Gambia. Rather, in regard to the obligation to punish
genocide, The Gambia claims that Myanmar is internationally responsible for its
continuing violation of its obligation under Article VI of the Genocide Convention to
institute and exercise its own territorial criminal jurisdiction over acts of genocide
committed on Myanmar’s own territory. In order to be entitled to make this claim before
the Court, The Gambia does not need to be authorized under the Convention to prosecute
and punish, in its own courts, the acts of genocide that Myanmar is failing to punish.
Myanmar has offered no rationale for that far-reaching conclusion.
II. Article IX of the Genocide Convention Allows The Gambia to Submit Its
Dispute with Myanmar to the Court
3.17 Myanmar is equally wrong to read into Article IX of the Genocide Convention a
non-existent “standing” requirement which would bar States that are not specially injured
by a breach from invoking the Court’s jurisdiction. There is nothing in the text of Article
IX that imposes such a requirement. Instead, Article IX gives jurisdictional effect to the
erga omnes partes character of the obligations under the Convention by extending the
Court’s jurisdiction to all disputes arising under the Convention that are submitted to it by
the parties to such disputes, regardless of whether they are specially affected or not.
3.18 The ordinary meaning of the terms of Article IX, read in context and in light of the
Convention’s object and purpose, supports The Gambia’s view that it has standing to seize
the Court in regard to Myanmar’s breaches.
A. ORDINARY MEANING
3.19 Article IX provides:
“Disputes between the Contracting Parties relating to the
interpretation, application or fulfilment of the present
28
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 International Court of
Justice at the request of any of the parties to the dispute.”70
3.20 Myanmar purports to derive the exclusion of disputes brought by non-specially
injured States from the jurisdiction of the Court from the fact that Article IX does not begin
with the words “all disputes” or “any dispute”.71 Myanmar’s reading of Article IX is
strained and wrong.
3.21 Article IX begins with the word “Disputes” in the plural form. The provision
requires only that such “disputes” must exist “between the Contracting Parties” and, in
regard to ratione materiae, that they must relate to “the interpretation, application or
fulfilment of the present Convention”.72 Article IX contains no further limitations on the
scope of the Court’s jurisdiction. The rest of the article confirms that the Contracting
Parties’ consent to jurisdiction encompasses disputes “relating to the responsibility of a
State for genocide or for any of the other acts enumerated in article III”.73
3.22 The ordinary meaning of the words used in Article IX is that the provision
encompasses any dispute existing between any of the contracting parties, provided that the
dispute relates to the responsibility of a State for fulfilment of the Convention’s obligations.
The words of Article IX do not contain any ratione personae limitation on the disputes
encompassed under it: the “disputes” falling under Article IX are any that have arisen
“between the Contracting Parties”. Nothing in Article IX suggests—let alone explicitly
70 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948,
entered into force 12 January 1951), 78 UNTS 277, art. IX. MG (23 October 2020), Vol. II, Annex 1
[hereinafter Genocide Convention (1951)].
71 POM, para. 264 (emphasis in original).
72 Genocide Convention (1951), art. IX. MG (23 October 2020), Vol. II, Annex 1.
73 Ibid.
29
provides—that Contracting Parties who are not specially injured are precluded from
invoking the responsibility of another Contracting State, or are barred from submitting to
the Court the dispute resulting from such invocation. On the contrary, Article IX expressly
states that “the responsibility of a State for genocide” can be the subject-matter of the
“disputes between the Contracting Parties” that can be “submitted to the International
Court of Justice at the request of any of the parties to the dispute”.74 The inclusion of
disputes “relating to the responsibility of a State for genocide” among those that can be
brought before the Court unmistakably means that responsibility for genocide can be the
object of a dispute brought before the Court by any contracting party. According to
Fitzmaurice, the text that became Article IX “was intended to impose upon all States
parties to the convention the obligation to refer all disputes relating to cases of genocide to
the International Court”.75 All States parties to the convention indisputably includes nonspecially
injured States.
3.23 Myanmar seeks to derive some advantage from the fact that the words “any
Contracting Party” are used in Article VIII while “the Contracting Parties” appear in
Article IX. It argues that this difference means that Article IX “close[s] the door to a
judicial actio popularis”76 and that the drafters of the Convention would have used “any”
instead of “the” in Article IX if they meant to empower non-specially injured States to
invoke the Court’s jurisdiction.
3.24 Myanmar’s effort to draw a meaningful distinction between the word “any” as used
in Article VIII and “the”—as used in Article IX—is entirely without merit. First, the plural
74 Ibid. (emphasis added).
75 See UN General Assembly, Third Session, Sixth Committee, 103rd Meeting, A/C.6/SR.103 (12 November
1948), reproduced in Abtahi & Webb, The Genocide Convention: The Travaux Préparatoires (Martinus
Nijhoff 2008), p. 1762 (per Mr. Fitzmaurice) (emphasis added). WOG, Annex 10.
76 POM, para. 269.
30
“Disputes between the Contracting Parties” in Article IX is no less broad than “any dispute
between Contracting Parties” in Article VIII. “The” Contracting parties, in Article IX, must
necessarily refer to any of them. The only other possible interpretation of “the” contracting
parties, linguistically, is that it means all of them, but this is plainly inconsistent with
Article IX and common sense. It could not have been the intention of the contracting
parties, in agreeing to Article IX, to enable recourse to the Court only if all of them sought
it. Accordingly, the only logical conclusion is that “the contracting parties” means any one
of them.
3.25 Second, Myanmar fails to see that Articles VIII and IX serve different purposes,
and that the procedure under Article VIII can be triggered even before a dispute under the
Convention arises between the Contracting Parties, while the existence of such a dispute is
the only condition for Article IX to apply. Moreover, under Article VIII, a Contracting
Party may “call upon” the organs of the United Nations to act even if genocide is committed
in or by a State that is not a party to the Convention.77
3.26 Myanmar contrasts Article IX with compromissory clauses in other conventions
containing erga omnes partes obligations.78 However, the comparison only serves to
underscore the breadth of the consent to jurisdiction in Article IX, which “makes the
Court’s jurisdiction conditional on the existence of a dispute relating to the interpretation,
application or fulfilment of the Convention”79 and on nothing else.
77 See UN Economic and Social Council, Ad hoc Committee on Genocide, Summary Record of the Twentieth
Meeting on 26 April 1948, E/AC.25/SR.20 (4 May 1948), reproduced in Abtahi & Webb, The Genocide
Convention: The Travaux Préparatoires (Martinus Nijhoff 2008), p. 945 (per Mr. Rudzinski). WOG,
Annex 7.
78 POM, paras. 262 et seq.
79 Provisional Measures Order, para. 20.
31
3.27 While the other jurisdictional clauses referred to by Myanmar contain additional
preconditions of consent that must be fulfilled before a State may seize the Court,80 the
Court’s jurisdiction under Article IX is only conditioned by the existence of a dispute. No
other preconditions exist. Article IX thus gives effect to the erga omnes partes character
of the Convention’s obligations: because genocide “shocks the conscience of mankind”,81
it must be prevented, stopped forthwith and punished, by enabling the other contracting
parties to hold the offending State accountable.
3.28 These fundamental characteristics of the Convention explain why no preconditions
to the seizing of the Court are prescribed, and why no limitations are placed on which
contracting parties may institute proceedings, as long as it is in dispute with the offending
State in relation to its obligations under the Convention.82 As the Court noted in its Order
of 23 January 2020, “all the States parties to the Genocide Convention have a common
interest to ensure that acts of genocide are prevented and that, if they occur, their authors
do not enjoy impunity”.83 That formulation plainly includes any individual State party.
80 POM, paras. 261-262. See, e.g., Application of the International Convention on the Elimination of All
Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J.
Reports 2011; Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Merits,
Judgment, I.C.J. Reports 2012; Application of the International Convention for the Suppression of the
Financing of Terrorism and of the International Convention on the Elimination of all Forms of Racial
Discrimination (Ukraine v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2019;
Appeal relating to the Jurisdiction of the ICAO Council under Article 84 of the Convention on International
Civil Aviation (Bahrain, Egypt, Saudi Arabia and United Arab Emirates v. Qatar), Judgment of 14 July 2020.
81 UN General Assembly, 55th Plenary Meeting, 96 (I). The Crime of Genocide, UN Doc. A/Res/96(I) (11
December 1946). MG (23 October 2020), Vol. II, Annex 4; see also Provisional Measures Order, para. 69.
82 In particular, the absence of a negotiation precondition in Article IX is thus an additional and very clear
indication that non-specially injured States—who have no personal injury to negotiate about—are entitled to
submit to the Court disputes resulting from their invocation of the responsibility of another contracting State
for acts of genocide.
83 Provisional Measures Order, para. 41.
32
B. OBJECT AND PURPOSE
3.29 This interpretation of Article IX is reinforced by the Genocide Convention’s object
and purpose. The Court has already emphasized the Convention’s object and purpose, in
its Order of 23 January 2020, as quoted above in paragraphs 3.3 and 3.4. The Convention’s
Preamble also addresses its object and purpose, in its reference to resolution 96(I) of the
General Assembly, from which the Court quoted in its Order.84 Resolution 96(I)
underscores that genocide is “contrary to the spirit and aims of the United Nations and
condemned by the civilized world”,85 “shocks the conscience of mankind” and “results in
great losses to humanity”.86 The Preamble further emphasizes that “in order to liberate
mankind from such an odious scourge, international co-operation is required”. This object
and purpose is irreconcilable with Myanmar’s contention that Article IX should be
interpreted as excluding from the Court’s jurisdiction disputes brought to it by nonspecially
injured States.
3.30 Myanmar’s contention that the Convention’s preparatory works support its
interpretation of Article IX fares no better. To begin with, Myanmar does not argue that
the meaning of Article IX is ambiguous or obscure, or that The Gambia’s interpretation of
the provision is manifestly absurd or unreasonable. As Professor Kolb has observed,
“Article IX of the Convention is … a model of clarity and simplicity, opening the seizing
of the Court as largely as possible.”87 Consequently, resort to the travaux is not necessary.
84 Ibid., para. 69.
85 Genocide Convention (1951), Preamble. MG (23 October 2020), Vol. II, Annex 1.
86 UN General Assembly, 55th Plenary Meeting, 96 (I). The Crime of Genocide, UN Doc. A/Res/96(I) (11
December 1946). MG (23 October 2020), Vol. II, Annex 4.
87 Robert Kolb, ‘The Compromissory Clause of the Convention’ in Paola Gaeta (ed), The UN Genocide
Convention: A Commentary (Oxford University Press 2008), p. 420. WOG, Annex 21.
33
Regardless, the preparatory works fully support and confirm The Gambia’s interpretation
of Article IX.
3.31 On 26 June 1947, the UN Secretary-General distributed a draft “Convention on the
crime of genocide”88 in pursuance of the resolution of the Economic and Social Council,
dated 28 March 1947, which was acting on the resolution of the General Assembly dated
11 December 1946. The draft convention was prepared with the assistance of three experts,
Professor Donnedieu de Vabres, at the Paris Faculty of Law; Professor Pella, President of
the International Association for Penal Law; and Professor Lemkin, who coined the word
“genocide”. Article XIV of the draft reads:
“Disputes relating to the interpretation or application of this
Convention shall be submitted to the International Court of
Justice.”89
3.32 The comment for that provision states:
“The International Court of Justice would appear to be the
judicial authority best qualified to deal with such disputes.
Since the Convention is not intended to regulate the
particular relations between States but to protect an essential
interest of the international community, any dispute is a
matter affecting all the parties to the Convention. Hence,
such dispute should not be settled by an authority arbitrating
between two or more States exclusively, for then its decision
would lack any claim to be binding on other States.
88 UN Economic and Social Council, Draft Convention on the Crime of Genocide, E/447 (26 June 1947),
reproduced in Abtahi & Webb, The Genocide Convention: The Travaux Préparatoires (Martinus Nijhoff
2008), p. 209. WOG, Annex 5.
89 The words “between any of the High Contracting Parties” were inserted after the word “Disputes” because
“[o]nly States may be parties to cases before the Court”. See Draft Convention on the Crime of Genocide:
communications received by the Secretary-General, Communication received from the United States of
America, A/401 (30 September 1947), reproduced in Abtahi & Webb, The Genocide Convention: The
Travaux Préparatoires (Martinus Nijhoff 2008), p. 381. WOG, Annex 6.
34
The International Court of Justice, on the contrary, is an
organ of the United Nations established by virtue of the
Charter itself; it is a court whose authority is recognized by
all the Members of the United Nations, and should
consequently be given jurisdiction to settle the disputes
concerned.”90
3.33 From its inception, the Genocide Convention’s compromissory clause was thus
conceived as giving effect to the fact that “any dispute is a matter affecting all the parties
to the Convention”.
3.34 The final draft submitted to the General Assembly confirmed this intention. The
report of the Sixth Committee to the General Assembly prepared by Mr. J. Spiropoulos
(Greece), dated 3 December 1948, summarized the history of the negotiations relating to
the compromissory clause:
“In article X of the draft Convention as drafted by the ad hoc
Committee [on the basis of the UN Secretary-General draft],
it was laid down that disputes relating to the interpretation or
application of the Convention should be submitted to the
International Court of Justice, provided that no dispute
should be submitted to the Court involving an issue which
had been referred to and was pending before, or had been
passed upon by, a competent international criminal tribunal.
At its 104th meeting the Committee adopted, however, in
substitution for this article, a joint amendment submitted by
the representatives of the United Kingdom and Belgium
(A/C.6/258), and amended by the representative of India,
according to which any dispute between the Contracting
90 UN Economic and Social Council, Draft Convention on the Crime of Genocide, E/447 (26 June 1947),
reproduced in Abtahi & Webb, The Genocide Convention: The Travaux Préparatoires (Martinus Nijhoff
2008), pp. 251-252 (emphasis added). WOG, Annex 5. Commenting on these two last sentences, Kolb writes:
“By this statement, the Secretary-General did obviously not mean that a decision by the Court would be
legally binding on non-parties to the dispute, contrary to Article 59 of the Statute. He rather underscored the
enhanced value of precedents set by the main judicial body of the UN with regard to all member states of
that organization.” Robert Kolb, ‘The Compromissory Clause of the Convention’ in Paola Gaeta (ed), The
UN Genocide Convention: A Commentary (Oxford University Press 2008), p. 409. WOG, Annex 21.
35
Parties relating to the interpretation, application or
fulfilment of the Convention, including disputes relating to
the responsibility of a State for any of the acts enumerated in
articles II and IV, should be submitted to the International
Court of Justice, at the request of any of the Contracting
Parties.”91
3.35 Myanmar’s discussion of the travaux fails to mention these events. Instead, it rests
on an amendment presented by the Indian delegate, Mr. Sundaram, replacing, in the
Belgian-British joint amendment, the words “at the request of any of the High Contracting
Parties” with “at the request of any of the parties to the dispute”.92 But the only effect of
the amendment was to require that the party invoking the Court’s jurisdiction has raised a
dispute with the State alleged to be in violation of its obligations under the Convention. In
other words, the amendment simply ensures that if two States are in dispute in regard to
obligations owed under the Genocide Convention, only those States may invoke the
jurisdiction of the Court; a third State, which is not a party to the dispute, cannot.93
3.36 The revision was regarded as editorial in nature, and without substantive effects.
The French delegate, Mr. Chaumont, so indicated when approving the Indian amendment;
he observed that the change of wording “was merely a drafting matter”.94 The report of the
91 UN General Assembly, Sixth Committee, Third Session, Genocide: Draft Convention and Report of the
Economic and Social Council, A/760 (3 December 1948), para. 15, reproduced in Abtahi & Webb, The
Genocide Convention. The Travaux Préparatoires (Martinus Nijhoff 2008), p. 2027 (emphasis added). WOG,
Annex 13.
92 POM, paras. 285-288.
93 On the Indian amendment, the record states only that: “In the joint amendment of Belgium and the United
Kingdom [A/C.6/258] it was provided that: ‘Any dispute ... shall be submitted to the International Court of
Justice at the request of any of the High Contracting Parties’. The representative of India felt that that change
of wording did not improve the text. It would be advisable, on the contrary, to replace that phrase by the
words ‘at the request of any of the parties to such dispute’, as suggested by the Indian amendment
[A/C.6/260].” See UN General Assembly, Sixth Committee, Third Session, 103rd Meeting, A/C.6/SR.103 (12
November 1948), reproduced in Abtahi & Webb, The Genocide Convention: The Travaux Préparatoires
(Martinus Nijhoff 2008), p. 1771 (per Mr. Sundaram). WOG, Annex 10.
94 UN General Assembly, Sixth Committee, Third Session, 103rd Meeting, A/C.6/SR.103 (12 November
1948), reproduced in Abtahi & Webb, The Genocide Convention: The Travaux Préparatoires (Martinus
36
Sixth Committee to the General Assembly prepared by Mr. J. Spiropoulos refers to the
Belgian-British proposal as “amended by the representative of India” to stress that it
allowed for the submission to the Court of “any dispute between the Contracting Parties”.95
3.37 Myanmar recalls that Mr. Sundaram expressed concern about the scope of the
compromissory clause. However, this was unrelated to his proposed amendment.
According to the full record (as distinguished from the truncated version supplied by
Myanmar):
“The representative of India considered that the inclusion of
all disputes relating to the responsibility of a State for any of
the acts enumerated in articles II and IV would certainly give
rise to serious difficulties. It would make it possible for an
unfriendly State to charge, on vague and unsubstantial
allegations, that another State was responsible for genocide
within its territory.”96
3.38 The record thus shows that the Indian representative’s concern was not about
potential suits by States that were not specially or directly injured, but by misuse of the
compromissory clause by unfriendly States based on nothing more than “vague and
insubstantial allegations”. Neither India nor any other State proposed an amendment aimed
Nijhoff 2008), p. 1763 (per Mr. Chaumont). WOG, Annex 10. Likewise, the deletion by the drafting
committee of the word “any” before the inaugurating word “disputes” was purely editorial, and it is troubling
to see Myanmar suggesting that a drafting committee would have the power to dramatically change the
meaning of a provision. See POM, para. 289.
95 UN General Assembly, Sixth Committee, Third Session, Genocide: Draft Convention and Report of the
Economic and Social Council, A/760 (3 December 1948), para. 15, reproduced in Abtahi & Webb, The
Genocide Convention. The Travaux Préparatoires (Martinus Nijhoff 2008), p. 2027 (emphasis added). WOG,
Annex 13.
96 UN General Assembly, Sixth Committee, Third Session, 103rd Meeting, A/C.6/SR.103 (12 November
1948), reproduced in Abtahi & Webb, The Genocide Convention: The Travaux Préparatoires (Martinus
Nijhoff 2008), p. 1771 (per Mr. Sundaram). WOG, Annex 10. This position was repeated by the Indian
delegate in the 178th plenary session of the General Assembly. See UN General Assembly, 178th Plenary
Meeting, Draft convention on genocide: reports of the Economic and Social Council and of the Sixth
Committee, A/PV.178 (9 December 1948), reproduced in Abtahi & Webb, The Genocide Convention: The
Travaux Préparatoires (Martinus Nijhoff 2008), p. 2060 (per Mr. Sundaram). WOG, Annex 14.
37
at this issue, although other States, including the United States—as Myanmar points out—
expressed similar concerns at various times.97 What Myanmar fails to recall is that it is
precisely because Article IX gives jurisdiction to the Court over disputes brought by nonspecially
injured States that the United States made a reservation to Article IX when
acceding to the Convention.98 Myanmar, on its part, did not limit its consent to the Court’s
jurisdiction, either by reservation to Article IX or in any other manner.
3.39 In fact, the Genocide Convention’s preparatory works make clear that the delegates
embraced the need to allow disputes to be referred to the Court by States that are not
themselves specially injured. This is because they understood that imposing such a
requirement would undermine the effectiveness of the Convention in regard to acts of
genocide committed exclusively within a State’s territory against a minority population:
Mr. de Beus (Netherlands) referred to the “undue lenience on the part of national
courts as a violation of the convention which could be brought before the
International Court of Justice by any signatory State”;99
Mr. Spiropoulos (Greece), approving the joint Belgian-British amendment that
provided that “[a]ny dispute” could be “submitted to the International Court of
Justice at the request of any of the High Contracting Parties”,100 stated that “the
97 POM, paras. 292-293.
98 “With reference to article IX of the Convention, before any dispute to which the United States is a party
may be submitted to the jurisdiction of the International Court of Justice under this article, the specific
consent of the United States is required in each case.” United Nations, Convention of 9 December 1948 on
the Prevention and Punishment of the Crime of Genocide: Declarations and Reservations by the United
States of America. See also William A. Schabas, Genocide in International Law (Cambridge University Press
2000), p. 424. WOG, Annex 18.
99 UN General Assembly, Sixth Committee, Third Session, 97th Meeting, A/C.6/SR.97 (9 November 1948),
reproduced in Abtahi & Webb, The Genocide Convention: The Travaux Préparatoires (Martinus Nijhoff
2008), p. 1675 (per Mr. de Beus). WOG, Annex 9.
100 See UN General Assembly, Sixth Committee, Third Session, 103rd Meeting, A/C.6/SR.103 (12 November
1948), reproduced in Abtahi & Webb, The Genocide Convention: The Travaux Préparatoires (Martinus
Nijhoff 2008), p. 1771 (per Mr. Sundaram). WOG, Annex 10.
38
State responsible for genocide would have to indemnify its own nationals”101 and
underscored that “[i]f a State ordered the destruction of a minority group which
included aliens, the convention was superfluous, because the principles of
international law would in any case have been violated. The nationals of the State
itself needed protection, not the aliens.”102
Mr. Demesmin (Haiti) considered that the principle of reparation for the victims
“applied if a State committed the crime of genocide against its own nationals”.103
Mr. Fitzmaurice (United Kingdom) “did not think that acts of genocide occurred
suddenly; genocide was a process in which racial, religious or political groups were
gradually destroyed. When it became clear that genocide was being committed, any
party to the convention could refer the matter to the International Court of Justice
… the United Kingdom delegation had felt that provision to refer acts of genocide
to the International Court of Justice, and the inclusion of the idea of international
responsibility of States or Governments, was necessary for the establishment of an
effective convention on genocide.”104
Mr. Alfaro (Panama) stated that “the International Court of Justice would be
requested to consider any disputes between nations regarding the possible
implementation of the draft convention”.105
101 UN General Assembly, Sixth Committee, Third Session, 103rd Meeting, A/C.6/SR.103 (12 November
1948), reproduced in Abtahi & Webb, The Genocide Convention: The Travaux Préparatoires (Martinus
Nijhoff 2008), p. 1765 (per Mr. Spiropoulos). WOG, Annex 10.
102 UN General Assembly, Sixth Committee, Third Session, 104th Meeting, A/C.6/SR.104 (13 November
1948), reproduced in Abtahi & Webb, The Genocide Convention: The Travaux Préparatoires (Martinus
Nijhoff 2008), p. 1781 (per Mr. Spiropoulos). WOG, Annex 11.
103 UN General Assembly, Sixth Committee, Third Session, 103rd Meeting, A/C.6/SR.103 (12 November
1948), reproduced in Abtahi & Webb, The Genocide Convention: The Travaux Préparatoires (Martinus
Nijhoff 2008), p. 1770 (per Mr. Demesmin). WOG, Annex 10.
104 UN General Assembly, Sixth Committee, Third Session, 104th Meeting, A/C.6/SR.104 (13 November
1948), reproduced in Abtahi & Webb, The Genocide Convention: The Travaux Préparatoires (Martinus
Nijhoff 2008), p. 1780 (per Mr. Fitzmaurice). WOG, Annex 11.
105 UN General Assembly, 179th Plenary Meeting, Continuation of the discussion on the draft convention on
genocide: reports of the Economic and Social Council and of the Sixth Committee, A/PV.179 (9 December
1948), reproduced in Abtahi & Webb, The Genocide Convention: The Travaux Préparatoires (Martinus
Nijhoff 2008), p. 2067 (per Mr. Alfaro). WOG, Annex 15.
39
3.40 Myanmar’s second preliminary objection asks: “Can it really be assumed that the
drafters of the Genocide Convention wanted, as early as 1948, not only to provide in the
Convention for obligations erga omnes partes, but also to invest all Contracting Parties
with unlimited standing?”106
3.41 The Convention’s preparatory works offer a clear answer to the question: Yes.
C. STATE RESPONSIBILITY
3.42 Myanmar seeks to interpret Article IX of the Convention by reference to the law of
State responsibility.
3.43 According to Myanmar, the “taking of countermeasures in response to violations
of obligations erga omnes partes on the one hand, and bringing of a case before the Court
on the other, are simply two ways of vindicating erga omnes obligations”.107 Hence,
Myanmar argues, because the enforcement of erga omnes partes obligations through
countermeasures by non-specially injured States is, allegedly, prohibited under general
international law, the enforcement of the same obligations through the Court at the request
of a non-specially injured State is likewise impossible.
3.44 Myanmar’s argument is misconceived. To bring a dispute to the Court is not a
countermeasure. It cannot be a wrongful act as such. In contrast, a countermeasure is an
act whose intrinsic wrongfulness is precluded by the wrongfulness of the prior act to which
it purports to react.108 There is therefore no basis for considering that “[b]oth enforcement
106 POM, para. 252.
107 Ibid., para. 302.
108 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful
Acts (2001), reproduced in Yearbook of the International Law Commission 2001, Vol. II(2), art. 22. MG (23
October 2020), Vol. II, Annex 15 [hereinafter ILC Articles on State Responsibility (2001)].
40
mechanisms … simply constitute two sides of the same coin”.109 The rules on
countermeasures cannot provide the basis for construing Article IX so as to prevent The
Gambia from seizing the Court under it.
3.45 Indeed, the law of State responsibility confirms that non-injured States are entitled
to invoke the responsibility of a State responsible for breaches of erga omnes partes
obligations and to take lawful measures against it.110 Myanmar knows this well, as many
among its senior leadership, and the State itself, are the subjects of sanctions by the
European Union and States that have not been specially affected by Myanmar’s breaches
of international law.111
III. Bangladesh’s Reservation to Article IX Has No Effect on The Gambia’s Right
to Submit Its Dispute with Myanmar to the Court
3.46 The Parties are agreed that Bangladesh’s reservation to Article IX prevents
Bangladesh from suing Myanmar for violating its obligations under the Convention.
Myanmar, however, argues that Bangladesh’s reservation also prevents The Gambia from
bringing proceedings against it.
109 POM, para. 302.
110 ILC Articles on State Responsibility (2001), art. 54. MG (23 October 2020), Vol. II, Annex 15.
111 See, e.g., Council of the European Union, Council Implementing Regulation (EU) 2018/898 of 25 June
2018 implementing Regulation (EU) No 401/2013 concerning restrictive measures in respect of
Myanmar/Burma (25 June 2018). MG (23 October 2020), Vol. VII, Annex 193; Council of the European
Union, Press Release: Myanmar/Burma: Council prolongs sanction (29 April 2019). MG (23 October 2020),
Vol. VII, Annex 196; US Department of the Treasury, Press Release: Treasury Sanctions Individuals for
Roles in Atrocities and Other Abuses (10 December 2019). MG (23 October 2020), Vol. VII, Annex 198;
United Kingdom Foreign Commonwealth Office, UK announces first sanctions under new global human
rights regime (6 July 2020). MG (23 October 2020), Vol. VII, Annex 200; United Kingdom Foreign
Commonwealth Office, UK Sanctions List (29 September 2020). MG (23 October 2020), Vol. VII, Annex
201.
41
3.47 This is not correct.
3.48 It is plain that the jurisdiction of the Court over a dispute between two States
depends only on the consent of those two States, and not on that of a third State. Under the
Convention, the lack of consent of any other Contracting Party is irrelevant to the
jurisdiction of the Court over a case between The Gambia and Myanmar. The consent of
other States is also irrelevant to the exercise of such jurisdiction when, as is the case here,
the claims submitted to the Court can be adjudicated upon without ruling, as a legal and
logical prerequisite, on the rights or obligations of any third State. Myanmar does not—
and could not—claim that Bangladesh is an indispensable third party within the meaning
of the Monetary Gold principle.
3.49 Myanmar argues, in regard to Bangladesh, that only it has been “specially affected
by the alleged violations of the Genocide Convention purportedly committed by
Myanmar”, and that, by entering a reservation to Article IX, Bangladesh “has thereby
waived its right to settle disputes relating to the interpretation, application or fulfilment of
the Convention by bringing a case before the Court under that provision”.112 This may be
true. But it has nothing to do with The Gambia’s right to bring a case before the Court.
3.50 Myanmar’s argument takes us back to its principal thesis that only “speciallyaffected”
States may bring suits under Article IX. Pursuant to this misguided theory, the
only State which has been “specially affected”—Bangladesh—has waived its right to sue,
leaving no other State with such a right. The argument thus rests on the fallacy that The
112 POM, para. 27; see also para. 310 (“such standing would still be subsidiary to, and dependent on, the
ability of specially-affected States to bring a case under the same compromissory clause. The effect of this in
the specific circumstances of the case now before the Court is that The Gambia lacks standing to bring this
case against Myanmar under Article IX of the Genocide Convention.”).
42
Gambia, as a non-specially affected State, is incapable of seizing the Court under Article
IX.
3.51 Plainly, The Gambia has standing to sue Myanmar, and its standing is not, and
cannot be, affected by Bangladesh’s reservation. As explained above, the standing of The
Gambia arises from the erga omnes partes character of the Convention’s obligations, and
the Court’s jurisdiction is based on the provisions of Article IX which encompass all
disputes relating to the responsibility of a State for genocide or for any of the other acts
enumerated in Article III, which include disputes brought to the Court by non-specially
injured States.
3.52 Myanmar has invented a so-called “primacy right of an injured Contracting Party
to the Genocide Convention”.113 However, there is nothing in the Convention, or in its
object and purpose or in its travaux, to suggest that a specially-injured party has a greater
right to bring its dispute before the Court than a non-specially injured party, or that a waiver
of its right automatically waives the purportedly lower-order rights of a non-specially
injured party. In the first place, The Gambia rejects the suggestion that its rights in respect
of bringing suit against Myanmar under Article IX are any less than those that Bangladesh
would have had if it had not made its reservation. Second, The Gambia also rejects the idea
that a waiver of rights by Bangladesh implies a waiver of its own rights. Indeed,
commenting on Article 45 of the Articles on State Responsibility, from which Myanmar
erroneously purports to draw support,114 the International Law Commission stated:
“The use of the term ‘valid waiver’ is intended to leave to
the general law the question of what amounts to a valid
waiver in the circumstances. Of particular significance in
this respect is the question of consent given by an injured
113 Ibid., para. 326.
114 Ibid., paras. 326-331.
43
State following a breach of an obligation arising from a
peremptory norm of general international law, especially one
to which article 40 applies. Since such a breach engages the
interest of the international community as a whole, even the
consent or acquiescence of the injured State does not
preclude that interest from being expressed in order to
ensure a settlement in conformity with international law.”115
***
3.53 For all the above reasons, Myanmar’s second preliminary objection is
unsustainable and without merit. The Court must reject it.
115 UN General Assembly, Report of the International Law Commission on the work of its fifty-third session
(2001), UN Doc. A/56/10/Corr. 1 (24 October 2001), p. 122, para. 4, available at
https://legal.un.org/ilc/documentation/english/reports/a_56_10.pdf (emphasis added).
44
45
CHAPTER 4
MYANMAR’S RESERVATION TO ARTICLE VIII IS IRRELEVANT
4.1 Myanmar’s third preliminary objection is that the Application is inadmissible
because:
“The Gambia, as a non-injured Contracting Party to the
Genocide Convention, may not seise the Court with a case
arising under that Convention since Myanmar, when
acceding to the Convention, has entered a reservation to its
Article VIII”.116
4.2 In its Order of 23 January 2020, the Court rejected the same objection on a prima
facie basis.117 The Court considered that “although the terms ‘competent organs of the
United Nations’ under Article VIII are broad and may be interpreted as encompassing the
Court within their scope of application, other terms used in Article VIII suggest a different
interpretation”.118 In particular, the Court noted that Article VIII “only addresses in general
terms the possibility for any Contracting Party to ‘call upon’ the competent organs of the
United Nations to take ‘action’ which is ‘appropriate’ for the prevention and suppression
of acts of genocide”.119 The provision, however, “does not refer to the submission of
disputes between Contracting Parties to the Genocide Convention to the Court for
adjudication”.120 The latter is a “matter specifically addressed in Article IX of the
Convention, to which Myanmar has not entered any reservation”.121 For these reasons, the
Court found:
116 POM, para. 28.
117 Provisional Measures Order, paras. 32-36.
118 Ibid., para. 35.
119 Ibid.
120 Ibid.
121 Ibid.
46
“Article VIII and Article IX of the Convention can therefore
be said to have distinct areas of application. It is only Article
IX of the Convention which is relevant to the seisin of the
Court in the present case”.122
4.3 The Court concluded:
“In view of the above, Myanmar’s reservation to Article VIII
of the Genocide Convention does not appear to deprive The
Gambia of the possibility to seise the Court of a dispute with
Myanmar under Article IX of the Convention.”123
4.4 For the same reasons, the Court should now reject Myanmar’s third preliminary
objection. Article VIII of the Genocide Convention does not concern the seisin of the
Court, which is governed instead by the Convention’s compromissory clause found in
Article IX. Myanmar’s reservation to Article VIII can have no bearing on the exercise of
the Court’s jurisdiction.
I. Article VIII Does Not Concern the Seisin of the Court
4.5 Myanmar’s third preliminary objection is made in the alternative to, and predicated
on, the Court’s rejection of the second preliminary objection.124 In particular, Myanmar
argues that even if the present dispute is within the Court’s jurisdiction ratione materiae
and ratione personae, and even if The Gambia has standing to sue under Article IX, The
Gambia still cannot seise the Court of its dispute with Myanmar. That is because, Myanmar
argues, its reservation to Article VIII—a provision that does not mention the Court—
122 Ibid., para. 35 citing Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order
of 8 April 1993, I.C.J. Reports 1993, p. 23, para. 47.
123 Ibid., para. 36.
124 POM, paras. 352, 356 and 478.
47
somehow renders inoperative Myanmar’s consent to jurisdiction under Article IX, a
provision to which Myanmar has made no reservation.
4.6 Myanmar’s objection is without foundation.125 The ordinary meaning of Article
VIII, interpreted in context and in light of the Genocide Convention’s object and purpose,
is clear that the provision is concerned solely with the right of Contracting Parties to call
upon the political organs of the United Nations to take action in response to genocide and
other acts prohibited by the Convention. Seisin of the Court to adjudicate disputes between
Contracting Parties concerning the interpretation, application or fulfilment of the Genocide
Convention is addressed separately in Article IX of the Convention. Myanmar’s
reservation to Article VIII is thus irrelevant to the exercise of the Court’s jurisdiction.
A. THE ORDINARY MEANING OF THE TERMS OF ARTICLE VIII
4.7 Article VIII provides:
“Any Contracting Party may call upon the competent organs
of the United Nations to take such action under the Charter
of the United Nations as they consider appropriate for the
prevention and suppression of acts of genocide or any of the
other acts enumerated in article III.”126
4.8 Upon Myanmar’s accession to the Genocide Convention, Myanmar made a
reservation to Article VIII. The reservation states:
125 Even more implausibly, Myanmar argues that its reservation to Article VIII has no effect on the seizing of
the Court by specially-affected States. POM, paras. 352, 469. Indeed, there is no evidence that Myanmar
intended its reservation to have the preclusive effect on seisin of the Court that forms the basis for its
preliminary objection. Neither the text of Myanmar’s reservation nor any statement made upon handing over
its instrument of ratification contains any hint of such an intention. Nor is any such intention evident in the
proceedings before the Burmese Parliament concerning ratification of the Genocide Convention.
126 Genocide Convention (1951), art. VIII.
48
“With reference to Article VIII, the Union of Burma makes
the reservation that the said Article shall not apply to the
Union.”127
4.9 Myanmar’s argument that the reservation prevents the Court from exercising
jurisdiction is irreconcilable with the Court’s holding that Articles VIII and IX have
“distinct areas of application” and that “only Article IX” is “relevant to the seisin of the
Court in the present case”.128 This has been the Court’s view since its 2007 Judgment in
the Bosnian Genocide case, which held that Article VIII “may be seen as completing the
system [of the Genocide Convention] by supporting both prevention and suppression, in
this case at the political level rather than as a matter of legal responsibility”.129
4.10 Myanmar nonetheless argues that Article VIII’s reference to the “organs of the
United Nations” encompasses both the UN’s political organs and the Court. The argument
is without merit. To begin with, Myanmar ignores the fact that the phrase “organs of the
United Nations” is qualified by the word “competent”. The UN organs that are competent
for purposes of Article VIII are explained in the rest of the provision—they must be capable
of taking such “action” under the “Charter of the United Nations” as they “consider
appropriate” for the “prevention and suppression of acts of genocide or any of the other
enumerated acts in article III”.
4.11 The Court, a judicial institution, does not have such competencies under Chapter 2
of its Statute. The Court does not take “actions” under the UN Charter. Rather, when
exercising jurisdiction in contentious cases, the Court renders legal judgments in
127 United Nations, Convention of 9 December 1948 on the Prevention and Punishment of the Crime of
Genocide: Ratification with Reservations by Burma, Reference C.N.25.1956.Treaties (29 March 1956). MG
(23 October 2020), Vol. II, Annex 5.
128 Provisional Measures Order, para. 35.
129 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 109, para. 159 (emphasis added).
49
accordance with Article 38(1) of the Statute, which provides that the Court’s “function is
to decide in accordance with international law such disputes as are submitted to it”.130 Nor
are the Court’s Judgments based on what it considers “appropriate”. Instead, they are
rendered solely on the basis of international law. Indeed, the Court may only “decide a
case ex aequo et bono, if the parties agree thereto”.131
4.12 Other treaties confirm that the words “competent organs of the United Nations”
refers to the UN’s political organs, not the Court. For instance, the International
Convention on the Suppression and Punishment of the Crime of Apartheid (“Apartheid
Convention”) references “competent organs of the United Nations” in a manner that can
only refer to political organs. Article X(1) of the Apartheid Convention provides in
pertinent part:
“1. The States Parties to the present Convention empower
the Commission on Human Rights …
(b) [T]o prepare, on the basis of reports from competent
organs of the United Nations and periodic reports from
States Parties to the present Convention, a list of individuals,
organizations, institutions and representatives of States
which are alleged to be responsible for the crimes
enumerated in article II of the Convention, as well as those
against whom legal proceedings have been undertaken by
States Parties to the Convention;
(c) [T]o request information from the competent United
Nations organs concerning measures taken by the authorities
responsible for the administration of Trust and Non-Self-
Governing Territories, and all other Territories to which
General Assembly resolution 1514 (XV) of 14 December
1960 applies, with regard to such individuals alleged to be
responsible for crimes under article II of the Convention who
130 Statute of the International Court of Justice, art. 38(1).
131 Ibid., art. 38(2).
50
are believed to be under their territorial and administrative
jurisdiction.”132
4.13 Plainly, only political organs are capable of furnishing States Parties with the
reports and information referred to in Article X(1) of the Apartheid Convention.133
4.14 The Statute of the International Atomic Energy Agency (“IAEA Statute”) and the
UN Convention on the Law of the Sea (“UNCLOS”) likewise indicate that “competent
organs of the United Nations” refers to the UN’s political organs. Article III(A)(6) of the
IAEA Statute provides that the Agency is authorized:
“To establish or adopt, in consultation and, where
appropriate, in collaboration with the competent organs of
the United Nations and with the specialized agencies
concerned, standards of safety for protection of health and
minimization of danger to life and property (including such
standards for labour conditions), and to provide for the
application of these standards to its own operations as well
as to the operations making use of materials, services,
equipment, facilities, and information made available by the
Agency or at its request or under its control or supervision;
and to provide for the application of these standards, at the
request of the parties, to operations under any bilateral or
132 International Convention on the Suppresion and Punishment of the Crime of Apartheid (adopted 30
November 1973, entered into force 18 July 1976), 1015 UNTS 243, art. X (emphasis added). POM (20
January 2021), Vol. II, Annex 6.
133 Article VIII of the Apartheid Convention, proposed as an amendment by the Soviet delegate, was explicitly
modelled on the same provision from the Genocide Convention, further demonstrating the common meaning
of the phrase “competent organs of the United Nations” between the treaties. UN General Assembly, Twenty-
Eighth Session, Third Committee, 2004th Meeting, A/C.3/SR.2004 (23 October 1973), para. 29, available at
https://undocs.org/en/A/C.3/SR.2004 (“Mr. SMIRNOV (Union of Soviet Socialist Republics) … In view of
the importance of the Convention under consideration, and of the seriousness of the crime of apartheid, as
defined in articles I and II, his delegation proposed that a provision analogous to article VIII of the
Convention on genocide should be incorporated into the Convention under consideration. He did not think
that such a provision would give rise to difficulties, and his delegation would submit a formal amendment
along those lines at the Committee’s next meeting.”) (emphasis in original).
51
multilateral arrangement, or, at the request of a State, to any
of that State's activities in the field of atomic energy”.134
4.15 Similarly, Article 163(13) of UNCLOS authorizes the Economic Planning and
Legal and Technical Commissions established under the Council of the International
Seabed Authority (“ISA”) to “consult … any competent organ of the United Nations or of
its specialized agencies or any international organizations with competence in the subjectmatter
of such consultation”.135
4.16 Only the UN’s political organs—not the Court—are capable of collaborating with
the IAEA to develop the safety standards described in Article III(a)(6) of the IAEA Statute
or of consulting with the ISA’s Commissions in regard to economic planning or legal or
technical matters, as contemplated by Article 163(13) of UNCLOS.136
134 International Atomic Energy Agency Statute (adopted 23 October 1956, entered into force 29 July 1957)
276 UNTS 3, art. III(A)(6) (emphasis added). See also, e.g., Agreement Governing the Activities of States
on the Moon and Other Celestial Bodies (adopted 5 December 1979, entered into force 11 July 1984), 1363
UNTS 3, art. 7(3) (“States Parties shall report to other States Parties and to the Secretary-General concerning
areas of the moon having special scientific interest in order that, without prejudice to the rights of other States
Parties, consideration may be given to the designation of such areas as international scientific preserves for
which special protective arrangements are to be agreed upon in consultation with the competent bodies of the
United Nations.”) (emphasis added); Protocol relating to the Status of Refugees (adoped 31 January 1967,
entered into force 4 October 1967) 606 UNTS 267, art. 2(2) (“In order to enable the Office of the High
Commissioner or any other agency of the United Nations which may succeed it, to make reports to the
competent organs of the United Nations, the States Parties to the present Protocol undertake to provide them
with the information and statistical data requested, in the appropriate form” concerning the “condition of
refugees”, the “implementation of the present Protocol”, and “Laws, regulations and decrees which are, or
may hereafter be, in force relating to refugees.”) (emphasis added).
135 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16
November 1994), 1833 UNTS 3, art. 163(13) (emphasis added).
136 Language similar to Article VIII of the Genocide Convention is also found in the Agreement Concerning
the Sovereignty, Independence, Territorial Integrity and Inviolability, Neutrality and National Unity of
Cambodia (“Cambodia Agreement”). Article 5(4) provides: “In the event of serious violations of human
rights in Cambodia, they will call upon the competent organs of the United Nations to take such other steps
as are appropriate for the prevention and suppression of such violations in accordance with the relevant
international instruments.” The Cambodia Agreement includes this provision even though the treaty does not
contain a compromissory clause providing for jurisdiction with the Court, thereby excluding the possibility
that the Court could be considered a competent organ of the UN for purposes of Article VIII of the Cambodia
52
4.17 The fact that Article VIII of the Genocide Convention does not address seisin of
the Court is further confirmed by its use of “call upon” to describe the Contracting Parties’
engagement with the “competent organs of the United Nations”. This is not a formulation
that describes the initiation of judicial proceedings, and Myanmar does not attempt to
suggest otherwise. Nor could it, as the phrase is employed in connection with appeals to
the exercise of discretion. The Oxford English Dictionary defines “call upon” as meaning
“To appeal to (a person, organization, etc.) to do something; to require, urge, or demand
that (a person, organization, etc.) do something.”137
4.18 The ordinary meaning of “call upon” is how the phrase is routinely used in the UN
system. Security Council and General Assembly resolutions, for instance, often “call upon”
States or other international actors to take specified actions.138 The Genocide Convention’s
use of the phrase in the same manner in Article VIII is confirmed by the UN Secretariat’s
1947 draft text. The Preamble to the draft states, in regard to genocide, that “The High
Contracting Parties … appeal to the feelings of solidarity of all members of the
international community and call upon them to oppose this odious crime”.139
Agreement. See Agreement Concerning the Sovereignty, Independence, Territorial Integrity and
Inviolability, Neutrality and National Unity of Cambodia (23 October 1991), art. 5(4). WOG, Annex 1.
137 Oxford English Dictionary, “to call upon” (last accessed 13 April 2021), p. 73. WOG, Annex 23.
138 See, e.g., UN Security Council, Resolution 2510 (2014) adopted by the Security Council at its 7155th
meeting on 16 April 2014, UN Doc. S/RES/2150 (2014), available at
https://undocs.org/en/S/RES/2150(2014) (“Calls upon States to recommit to prevent and fight against
genocide, and other serious crimes under international law…”.) (emphasis in original); UN General
Assembly, Resolution adopted on 31 December 2020 on Situation of human rights of Rohingya Muslims and
other minorities in Myanmar, UN Doc. A/RES/75/238 (4 January 2021), available at
https://undocs.org/en/A/RES/75/238 (“[C]alls upon the international community to continue to support the
Government of Myanmar in the fulfilment of its international human rights obligations and commitments,
the implementation of its democratic transition process, inclusive socioeconomic development and
sustainable peace, as well as its national reconciliation process involving all relevant stakeholders”.).
139 UN Economic and Social Council, Draft Convention on the Crime of Genocide, E/447 (26 June 1947),
Preamble, reproduced in Abtahi & Webb, The Genocide Convention: The Travaux Préparatoires (Martinus
Nijhoff 2008), p. 214 (emphasis added). WOG, Annex 5.
53
4.19 Unable to challenge this obvious defect in its argument, Myanmar relies on the
verbs used in the French and Spanish versions of the Genocide Convention—“saisir” and
“recurrir”, respectively.140 The argument fares no better in these languages. While “saisir”
and “recurrir” may sometimes be used in legal contexts, they are also employed in
connection with appeals to political bodies. The Chinese equivalent, “ti qing”, and Russian
equivalent, “obratitsia”, are no different.
B. OBJECT AND PURPOSE
4.20 Myanmar seeks to rescue its argument by appealing to the “object and purpose of
Article VIII”.141 In that connection, Myanmar argues that because the seisin of the UN’s
political organs is already guaranteed by the UN Charter, Article VIII “must be understood
as regulating the right of a non-injured Contracting Party to bring a case” to the Court
“against another Contracting Party”. Otherwise, Myanmar contends, Article VIII “would
be devoid … of any meaningful object and purpose”.142 However, as Judge Gaja has
explained in his commentary on Article VIII, the provision can “affect the exercise” of the
Security Council’s powers “in relation to the states parties to the treaty, especially when
that exercise depends on the consent of the states concerned”.143 Article VIII thus clarifies
that genocide is not to be considered a matter that is essentially “included in the domestic
jurisdiction of a State” within the meaning of Article 2, paragraph 7, of the Charter.144
140 POM, paras. 384-385.
141 Ibid., Section III.C.2.d.
142 Ibid., para. 438.
143 Giorgio Gaja, ‘The Role of the United Nations in Preventing and Suppressing Genocide’ in Paola Gaeta
(ed), The UN Genocide Convention: A Commentary (Oxford University Press 2008), p. 399. WOG,
Annex 20.
144 Ibid., p. 400 citing H.H. Jescheck, ‘Genocide’, in Bernhardt (ed), Encyclopedia of Public International
Law (Amsterdam, Elsevier 1995), Vol. II, 541, p. 542 (the author underscored that genocide could not be
considered as a matter within the domestic jurisdiction of a State).
54
Accordingly, by virtue of Article VIII, the Security Council can be engaged without
needing to invoke the process for obtaining “enforcement measures under Chapter VII”.145
4.21 Moreover, States may be Contracting Parties to the Genocide Convention without
being Members of the United Nations.146 Article VIII enables such States to bring acts of
genocide to the UN’s attention even in the absence of UN membership.147 As has been
observed in academic commentary, Article VIII “extends” to “non-member States” the
right to call upon the competent organs of the United Nations.148 Further, Article VIII
permits UN Member States to raise with UN organs acts of genocide committed by States
that are not Contracting Parties to the Genocide Convention and which are thus beyond the
jurisdictional reach of Article IX.
4.22 These are not the only differences between Articles VIII and IX that give useful
effect to the former. The other differences include:
Unlike seisin of the Court under Article IX, which requires a dispute between the
parties, the absence in Article VIII of a requirement that there be a “dispute” permits
the Contracting Parties to call upon the competent UN organs even without a
dispute having been crystallized under international law.
Article VIII permits calling upon the UN’s competent organs in circumstances
where the alleged acts of genocide have been carried out by non-State actors,
including those whose acts are not attributable to any State, unlike under Article
145 UN Charter, art. 2(7).
146 UN Members list, available at https://www.un.org/en/member-states/index.html. For instance, South
Korea ratified the Convention in 1950, but became a UN Member State in 1991 only. Likewise, Bulgaria
(1950, 1955), Germany (1954, 1973), Hungary (1952, 1955), Italy (1952, 1955), North Korea (1989, 1991),
Romania (1950, 1955), and Switzerland (2000, 2002) were for a certain number of years bound by the
Convention while outside the United Nations.
147 UN Charter, art. 35, para. 2. See also art. 32.
148 William A. Schabas, Genocide in International Law (Cambridge University Press 2000), p. 75. WOG,
Annex 18. See also Nehemiah Robinson, The Genocide Convention - A Commentary (Institute of Jewish
Affairs 1960), p. 94. MG (23 October 2020), Vol. VIII, Annex 209.
55
IX, where the Court’s jurisdiction is limited to adjudicating the international
responsibility of States.149
C. TRAVAUX PRÉPARATOIRES
4.23 The Genocide Convention’s preparatory works confirm that Article VIII’s
regulation of the right to call upon UN organs to take action in respect of acts of genocide
is unrelated to seisin of the Court under Article IX. Reflecting this differentiation, the
drafters addressed those matters in separate parts of the draft Convention throughout the
negotiations.
4.24 In the 1947 draft text prepared by the UN Secretariat, engagement of the UN’s
organs was addressed in draft Article XII, the forerunner of what became Article VIII. The
draft article, entitled “Action by the United Nations to Prevent or Stop Genocide”,
provided:
“Irrespective of any provisions in the foregoing articles,
should the crimes as defined in this Convention be
committed in any part of the world, or should there be
serious reasons for suspecting that such crimes have been
committed, the High Contracting Parties may call upon the
competent organs of the United Nations to take measures for
the suppression or prevention of such crimes.
149 Giorgio Gaja, ‘The Role of the United Nations in Preventing and Suppressing Genocide’ in Paola Gaeta
(ed), The UN Genocide Convention: A Commentary (Oxford University Press 2008), pp. 402-403 (“Article
VIII does not make a distinction” with respect to “action taken by the political organs of the UN … directed
towards states that … [are] considered in breach of their obligations and … towards individuals, deemed to
be authors of the crimes”.). WOG, Annex 20.
56
In such case the said Parties shall do everything in their
power to give full effect to the intervention of the United
Nations.”150
4.25 The drafters elected to locate the compromissory clause in a different part of the
draft Convention—draft Article XIV—which bore the title “Settlement of disputes on
interpretation or application of the convention”. It provided:
“Disputes relating to the interpretation or application of this
Convention shall be submitted to the International Court of
Justice.”151
4.26 The Ad Hoc Committee of the Economic and Social Council that prepared the
second draft text maintained this separation. Draft Article VIII, entitled “Action of the
United Nations”, provided:
“1. A party to this Convention may call upon any competent
organ of the United Nations to take such action as may be
appropriate under the Charter for the prevention and
suppression of genocide.
2. A party to this Convention may bring to the attention of
any competent organ of the United Nations any case of
violation of this Convention.”152
4.27 The Report of the Ad Hoc Committee records that draft Article VIII was “discussed
at length when the Committee considered questions of principle” and “again when the
150 UN Economic and Social Council, Draft Convention on the Crime of Genocide, E/447 (26 June 1947),
art. XII, reproduced in Abtahi & Webb, The Genocide Convention: The Travaux Préparatoires (Martinus
Nijhoff 2008), p. 218. WOG, Annex 5.
151 Ibid., p. 219.
152 UN Economic and Social Council, Ad hoc Committee on Genocide, Report of the Committee and Draft
Convention drawn up by the Committee, E/794 (24 May 1948), art. VIII, reproduced in Abtahi & Webb, The
Genocide Convention: The Travaux Préparatoires (Martinus Nijhoff 2008), p. 1141. WOG, Annex 8.
57
Articles of the Convention were being drafted”.153 Disagreement centered on, in part,
whether the article should refer specifically to the Security Council or should instead not
mention any specific UN organ. Those advocating the latter view argued that:
“although the Security Council appeared to be the organ to
which governments would most frequently wish to apply, it
was undesirabl[e] to rule out the General Assembly, the
Economic and Social Council or the Trusteeship Council. In
some cases it would be of advantage to call on the General
Assembly because it directly expressed the opinion of all
Members of the United Nations, and because its decisions
were taken by a majority vote with no risk of the right of veto
preventing a decision.”154
4.28 The “advocates of naming the Security Council replied that they did not exclude
the possibility of referring the question to the General Assembly or adopting any other
measures which the Security Council may deem necessary”.155
4.29 Significantly, the Ad Hoc Committee’s report does not mention any participants as
having suggested that the Court might also be encompassed by the draft Article VIII. Only
political organs are mentioned: the Security Council, the General Assembly, the Economic
and Social Council, and the Trusteeship Council.156
4.30 Like the Secretariat’s earlier draft text, the one produced by the Ad Hoc Committee
addressed the jurisdiction of the Court in separate provision: draft Article X (which later
153 Ibid.
154 Ibid., p. 1142.
155 Ibid.
156 See also Giorgio Gaja, ‘The Role of the United Nations in Preventing and Suppressing Genocide’ in Paola
Gaeta (ed), The UN Genocide Convention: A Commentary (Oxford University Press 2008), p. 401 (observing
that Article VIII is “meant to include” the Security Council as well as “the Trusteeship Council, the Economic
and Social Council and the Secretariat”.). WOG, Annex 20.
58
became Article IX). Entitled “Settlement of disputes by the International Court of Justice”,
it provided:
“Disputes between the High Contracting Parties relating to
the interpretation or application of this Convention shall be
submitted to the International Court of Justice, provided that
no dispute shall be submitted to the International Court of
Justice involving an issue which has been referred to and is
pending before or has been passed upon by a competent
international criminal tribunal.”157
4.31 Myanmar is not assisted by relying on a part of the intervention of the Australian
delegate that, Myanmar argues, suggests it was “understood that if the Court could not be
validly seised under draft Article VIII, it would not be in a position to exercise its
jurisdiction under draft Article X”, i.e., the compromissory clause.158 The full text makes
clear that the Australian delegate suggested nothing of the sort. His intervention came at a
point in the negotiations when Article VIII had been deleted, which the Australian
delegation considered to have been a mistake. In that context, the Australian delegation—
as recorded in a part of the travaux that Myanmar omits—“considered that a clause should
be inserted in article X [which ultimately became Article IX] concerning organs of the
United Nations other than the International Court of Justice, which could take useful action
in suppressing genocide”.159
4.32 The Australian delegation thus confirmed that the rights and obligations established
by the Genocide Convention could be enforced either through “organs of the United
157 UN Economic and Social Council, Ad hoc Committee on Genocide, Report of the Committee and Draft
Convention drawn up by the Committee, E/794 (24 May 1948), art. X, reproduced in Abtahi & Webb, The
Genocide Convention: The Travaux Préparatoires (Martinus Nijhoff 2008), p. 1144. WOG, Annex 8.
158 POM, para. 427.
159 UN General Assembly, Sixth Committee, Third Session, 103rd Meeting, A/C.6/SR.103 (12 November
1948), reproduced in Abtahi & Webb, The Genocide Convention: The Travaux Préparatoires (Martinus
Nijhoff 2008), p. 1760 (per Mr. Dignam). WOG, Annex 10.
59
Nations other than the International Court of Justice” or through the Court, and that those
enforcement mechanisms should, consequently, be addressed separately.160 The British
delegate explained why the Convention ultimately treated them in separate articles, rather
than as separate clauses within the same article, as the Australian delegate had proposed.
He stated that “although his delegation considered it unnecessary to include in the
convention provisions conferring on the organs of the United Nations powers which they
already possessed under the terms of the Charter”, it voted in favour of the amendment that
created Article VIII “in order that it might be clear, beyond any doubt”, that the amendment
“did not imply that recourse might be had only to the International Court of Justice, to the
exclusion of the other competent organs of the United Nations”.161
4.33 The drafting history of the Convention is thus clear about the respective provinces
of Articles VIII and IX: the former concerns the UN’s political organs; the latter the Court.
The travaux préparatoires therefore provide no support for Myanmar’s third preliminary
objection.162
4.34 In short, Article VIII is irrelevant to seisin of the Court. Myanmar’s reservation to
that provision therefore cannot prevent the Court from adjudicating these proceedings in
accordance with Myanmar’s consent to jurisdiction under Article IX.
***
For all the above reasons, the Court should once again reject Myanmar’s third
preliminary objection.
160 Ibid.
161 UN General Assembly, Sixth Committee, Third Session, 105th Meeting, A/C.6/SR.105 (13 November
1948), reproduced in Abtahi & Webb, The Genocide Convention: The Travaux Préparatoires (Martinus
Nijhoff 2008), p. 1797 (per Mr. Fiztmaurice). WOG, Annex 12.
162 POM, para. 430.
60
61
CHAPTER 5
A DISPUTE EXISTS BETWEEN THE GAMBIA AND MYANMAR
5.1 Myanmar’s fourth preliminary objection is that “the Court lacks jurisdiction, or
alternatively the application is inadmissible, as there was no dispute between The Gambia
and Myanmar on the date of filing of the Application instituting proceedings”.163
5.2 Myanmar also raised this objection at the hearing on provisional measures. In its
Order of 23 January 2020, the Court found that the “statements made by the Parties before
the United Nations General Assembly suggest the existence of a divergence of views
concerning the events which allegedly took place in Rakhine State in relation to the
Rohingya”.164 The Court further observed that The Gambia’s Note Verbale of 11 October
2019:
“specifically referred to the reports of the Fact-Finding
Mission and indicated The Gambia’s opposition to the views
of Myanmar, in particular as regards the latter’s denial of its
responsibility under the Convention. In light of the gravity
of the allegations made therein, the Court considers that the
lack of response may be another indication of the existence
of a dispute between the Parties.”165
5.3 The Court ruled that these “elements are sufficient at this stage to establish prima
facie the existence of a dispute between the Parties relating to the interpretation, application
or fulfilment of the Genocide Convention”.166
163 POM, para. 29.
164 Provisional Measures Order, para. 27.
165 Ibid., para. 28.
166 Ibid., para. 31.
62
5.4 As discussed in this Chapter, the Court was correct in its conclusion: prior to the
filing of The Gambia’s Application, the evidence makes clear that there existed a dispute
between The Gambia and Myanmar relating to Myanmar’s fulfilment of its obligations
under the Genocide Convention and customary international law.
I. The Applicable Law Regarding the Existence of a Dispute
5.5 The Court’s standards for identifying the existence of a dispute as of the date of the
filing of the Application are well established. “A dispute between States exists where they
hold clearly opposite views concerning the question of the performance or nonperformance
of certain international obligations”.167 In applying this standard, the Court
has stated that “a dispute exists when it is demonstrated, on the basis of the evidence, that
the respondent was aware, or could not have been unaware, that its views were ‘positively
opposed’ by the applicant”.168 There is no single or preferred manner for such opposition
to be manifested; rather, the “existence of a dispute is a matter for objective determination
by the Court; it is a matter of substance, and not a question of form or procedure”.169
167 Ibid., para. 20 citing Application of the International Convention on the Suppression of the Financing of
Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination
(Ukraine v. Russian Federation), Provisional Measures, Order of 19 April 2017, I.C.J. Reports 2017, p. 115,
para. 22 (citing Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory
Opinion, I.C.J. Reports 1950, p. 74)).
168 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 2016,
p. 849, para. 41.
169 Provisional Measures Order, para. 26 citing Obligations concerning Negotiations relating to Cessation of
the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 2016, p. 849, para. 38.
63
5.6 In deciding this issue, the Court “takes into account in particular any statements or
documents exchanged between the Parties”,170 “as well as any exchanges made in
multilateral settings”.171 When reviewing such exchanges, the Court “pays special attention
to ‘the author of the statement or document, their intended or actual addressee, and their
content’”.172 The disagreement between the parties “need not necessarily be stated
expressis verbis ... the position or the attitude of a party can be established by inference,
whatever the professed view of that party”.173 Indeed, “the existence of a dispute may be
inferred from the failure of a State to respond to a claim in circumstances where a response
is called for”.174 And in terms of the subject matter of the dispute:
“While it is not necessary that a State must expressly refer to
a specific treaty in its exchanges with the other State to
enable it later to invoke that instrument before the Court …,
the exchanges must refer to the subject-matter of the treaty
with sufficient clarity to enable the State against which a
claim is made to identify that there is, or may be, a dispute
with regard to that subject-matter. An express specification
170 Ibid., para. 26 citing Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal),
Merits, Judgment, I.C.J. Reports 2012, pp. 443-445, paras. 50-55.
171 Ibid., para. 26 citing Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011, p.
94, para. 51 and p. 95, para. 53.
172 Ibid., para. 26 citing Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011, p.
100, para. 63.
173 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary
Objections, Judgment, I.C.J. Reports 1998, p. 315, para. 89.
174 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v. India), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2016, p.
850, para. 40, citing Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011, p.
84, para. 30 (citing Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria),
Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 315, para. 89).
64
would remove any doubt about one State’s understanding of
the subject-matter in issue and put the other on notice.”175
II. A Dispute between the Parties Existed Prior to the Filing of The Gambia’s
Application
5.7 The evidentiary record demonstrates that The Gambia and Myanmar held opposite
views regarding Myanmar’s compliance with its obligations under the Genocide
Convention, that The Gambia positively opposed Myanmar’s denials of its acts of genocide
against the Rohingya group in Myanmar, and that Myanmar was aware that The Gambia
positively opposed its views on the Rohingya genocide. This dispute was manifest through
the Parties’ exchanges at the United Nations and via The Gambia’s Note Verbale of 11
October 2019.
A. THE PARTIES’ EXCHANGES AT THE UNITED NATIONS DEMONSTRATE THE
EXISTENCE OF A DISPUTE BETWEEN THEM
5.8 As observed by the Court in its Order of 23 January 2020, the Parties’ exchanges
at the United Nations in 2019 demonstrate that they held clearly opposite views concerning
the question of Myanmar’s responsibility for acts of genocide against the Rohingya,176
which relate directly to its fulfillment of its obligations under the Genocide Convention
and customary international law. The existence of their opposed views is further supported
by Myanmar’s own statements demonstrating awareness and rejection of the allegations of
its responsibility for the Rohingya genocide in both 2018 and 2019.
175 Application of the International Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011, p. 85, para. 30.
176 Provisional Measures Order, para. 27.
65
5.9 Myanmar’s awareness of The Gambia’s views on its responsibility for acts of
genocide against the Rohingya existed as of May 2018. After a meeting of the Member
States of the OIC in Dhaka, Bangladesh from 5-6 May 2018, the Member States issued the
Dhaka Declaration, which expressed their serious concerns over the “systematic brutal acts
perpetrated by [Myanmar] security forces against the Rohingya ... which constitute a
serious and blatant violation of international law”.177 The Declaration also stressed the
importance of “the accountability issue for the violations ... against the Rohingyas in
Myanmar through [the] formation of an ad hoc ministerial committee, to be chaired by
[The] Gambia”.178 Myanmar responded to this declaration three days later and expressed a
clearly opposite view concerning the characterization of its acts and fulfillment of its
international obligations. In its statement, the Myanmar Ministry of Foreign Affairs
“categorically reject[ed]” the description of “events in Rakhine State” as “State backed
violence” and disclaimed any responsibility for violating applicable international
obligations, by contending that “no violation of human rights will be condoned”.179 Thus,
as of May 2018, Myanmar was not only aware of The Gambia’s role in seeking
accountability for violations against the Rohingya, but it also affirmatively denied the
allegations of State-sponsored violence against the Rohingya in Rakhine State.
5.10 On 12 September 2018, the UN Independent International Fact-Finding Mission on
Myanmar released its first of two reports in which it found evidence of genocidal acts and
genocidal intent attributable to Myanmar in the context of its crimes against the Rohingya.
The report found that “[t]he crimes in Rakhine State, and the manner in which they were
177 Organisation of Islamic Cooperation, 45th Session of the Council of Foreign Ministers of the Organisation
of Islamic Cooperation, Dhaka Declaration (6 May 2018), para. 14. MG (23 October 2020), Vol. VII, Annex
203.
178 Ibid., para. 17.
179 Republic of the Union of Myanmar, Ministry of Foreign Affairs, “#Myanmar rebuts Dhaka Declaration’s
reference on situation in Rakhine State and calls for Bangladesh’s sincere cooperation to start early
repatriation”, Twitter (9 May 2018). MG (23 October 2020), Vol. VI, Annex 158.
66
perpetrated, are similar in nature, gravity and scope to those that have allowed genocidal
intent to be established in other contexts”.180 The Fact-Finding Mission had shared that
report with Myanmar on 16 August 2018, with a request that Myanmar provide any
corrections or reactions by 23 August 2018.181 Myanmar did not provide a response.182
5.11 On 25 September 2018, H.E. Adama Barrow, President of The Gambia, referring
to the UN report, stated that “The Gambia has undertaken, through a Resolution, to
champion an accountability mechanism that would ensure that perpetrators of the terrible
crimes against the Rohingya Muslims are brought to book”.183 Three days later, Myanmar’s
Union Minister of the State Counsellor’s Office, U Kyaw Tint Swe (its Co-Agent in these
proceedings), dismissed the UN Mission’s findings as “based on narratives and not on hard
evidence”.184 These statements at the United Nations in 2018 indicate that The Gambia and
Myanmar held clearly opposed views regarding the fact of international crimes having been
committed against the Rohingya, and the need for international accountability measures to
redress those crimes.
5.12 Myanmar’s rejection of resolutions adopted by OIC Member States, including The
Gambia, in March 2019, provide further evidence of Myanmar’s awareness of The
180 UN Human Rights Council, Report of the independent international fact-finding mission on Myanmar,
UN Doc. A/HRC/39/64 (12 September 2018), para. 85. MG (23 October 2020), Vol. II, Annex 39.
181 UN Human Rights Council, Report of the detailed findings of the Independent International Fact-Finding
Mission on Myanmar, UN Doc. A/HRC/39/CRP.2 (17 September 2018), p. 144. MG (23 October 2020), Vol.
II, Annex 40.
182 UN Human Rights Council, Report of the independent international fact-finding mission on Myanmar,
UN Doc. A/HRC/39/64 (12 September 2018), para. 3. MG (23 October 2020), Vol. II, Annex 39.
183 UN General Assembly, 73rd Session, 7th Plenary Meeting, Address by Mr. Adama Barrow, President of
the Republic of The Gambia, UN Doc. A/73/PV.7 (25 September 2018), p. 6. MG (23 October 2020), Vol.
III, Annex 41.
184 Republic of the Union of Myanmar: State Counsellor Office, Statement by H.E. U Kyaw Tint Swe, Union
Minister for the Office of the State Counsellor and Chairman of the Delegation of the Union of Myanmar at
the General Debate of the 73rd Session of the United Nations General Assembly (28 September 2018),
p. 4. WOG, Annex 4.
67
Gambia’s opposite views on the Rohingya genocide and Myanmar’s responsibility. In one
resolution, the Member States of the OIC emphasized that accountability was necessary
for “preventing genocide” and endorsed the recommendation of the Ad Hoc Committee
chaired by The Gambia to hold Myanmar accountable under the Genocide Convention.185
In another text, the OIC Member States called upon Myanmar to “honor its obligations
under International Law and Human Rights covenants, and to take all measures to
immediately halt all vestiges and manifestations of the practice of … genocide … against
Rohingya Muslims”.186 That resolution also noted:
“the opening Statement of the Chairperson of the United
Nations Independent International Fact-Finding Mission on
Myanmar, at the UN Security Council on 24 October 2018,
in which he stated that … ‘[t]he Mission … found sufficient
information to warrant the investigation and prosecution of
senior officials in the Tatmadaw on charges of genocide.
This means that we consider that genocidal intent, meaning
the intent to destroy the Rohingya in whole or in part, can be
reasonably inferred’”.187
5.13 The spokesperson for Myanmar’s Government reacted to these resolutions by
declaring that if Myanmar is pressured “to do something by force, we will have to protect
our sovereignty”.188 These comments demonstrate Myanmar’s awareness of the views of
185 Organisation of Islamic Cooperation, Resolution No. 61/46-POL on The Work of the OIC Ad hoc
Ministerial Committee on Accountability for Human Rights Violations Against the Rohingyas, OIC Doc.
OIC/CFM-46/2019/POL/RES/FINAL (1-2 March 2019). POM (20 January 2021), Vol. IV, Annex 94.
186 Organisation of Islamic Cooperation, Resolution No. 4/46-MM on the Situation of the Muslim Community
in Myanmar, OIC Doc. OIC/CFM-46/2019/MM/RES/FINAL (1-2 March 2019), para. 11(a). MG (23 October
2020), Vol. VII, Annex 204.
187 Ibid., p. 15.
188 “World Islamic Group Votes to Take Myanmar Rohingya Abuses to International Court of Justice”, Radio
Free Asia (5 March 2019). MG (23 October 2020), Vol. IX, Annex 304.
68
OIC Member States, including those of The Gambia as chair of the ad hoc committee
responsible for these issues, and Myanmar’s positive opposition to their views.
5.14 On 31 May 2019, at the 14th OIC Summit Conference, The Gambia, along with
other OIC Member States, “condemned the inhumane situation in which the Rohingya
Muslim community lives”, “called for urgent action to end acts of violence and all brutal
practices”, and “emphasized that the Government of Myanmar is fully responsible” for the
situation.189 The same States also affirmed their support for “using all international legal
instruments to hold accountable the perpetrators of crimes against the Rohingya” and
“urged upon the ad hoc Ministerial Committee led by the Gambia to take immediate
measures to launch the case at the International Court of Justice on behalf of the OIC”.190
5.15 The UN Fact-Finding Mission itself took notice of the OIC’s statement of support
for The Gambia to bring the present case against Myanmar under the Genocide
Convention. On 8 August 2019, the Fact-Finding Mission submitted to the General
Assembly a second report. It affirmed “that Myanmar incurs State responsibility under the
prohibition against genocide”,191 and found that the evidence of Myanmar’s intention to
commit genocide had “strengthened” since its 2018 reports.192 In these circumstances, the
Mission expressly “welcome[d] the efforts of … the Gambia … to encourage and pursue a
case against Myanmar before the International Court of Justice under the Convention on
the Prevention and Punishment of the Crime of Genocide”.193 A copy of this report was
189 Organisation of Islamic Cooperation, Final Communiqué of the 14th Islamic Summit Conference, OIC
Doc. OIC/SUM-14/2019/FC/FINAL (31 May 2019), para. 45. MG (23 October 2020), Vol. VII, Annex 205.
190 Ibid., para. 47.
191 UN Human Rights Council, Report of the independent international fact-finding mission on Myanmar,
UN Doc. A/HRC/42/50 (8 August 2019), para. 18. MG (23 October 2020), Vol. III, Annex 47.
192 Ibid., para. 23.
193 Ibid., para. 107.
69
supplied to Myanmar on 31 July 2019, with a request for any corrections.194 Myanmar
provided no response.195
5.16 The UN Fact-Finding Mission formally delivered its Detailed Report of 2019 to
Myanmar on 11 September 2019, and released it publicly on 16 September 2019. Again,
Myanmar provided no response.196 In that Detailed Report, the Fact-Finding Mission found
that Myanmar “continues to harbour genocidal intent” and therefore that “the Rohingya
remain under serious risk of genocide”.197 This Report again welcomed the efforts of “The
Gambia … and the Organisation of Islamic Cooperation to encourage and pursue a case
against Myanmar before the International Court of Justice (ICJ) under the Genocide
Convention”.198
5.17 The August and September 2019 reports of the UN Fact-Finding Mission, and all
of the developments since 2018 recounted above, confirm the existence of a dispute
between The Gambia and Myanmar over the latter’s fulfilment—or failure to fulfil—its
obligations under the Genocide Convention in regard to its actions against the Rohingya
group. The developments also provide context for the direct exchanges between The
Gambia and Myanmar at the seventy-fourth session of UN General Assembly in late
September 2019. At that session, on 26 September 2019, H.E. Mrs. Isatou Touray, Vice
President of The Gambia, announced The Gambia’s intention “to lead concerted efforts to
194 UN Human Rights Council, Detailed findings of the Independent International Fact-Finding Mission on
Myanmar, UN Doc. A/HRC/42/CRP.5 (16 September 2019) (additional excerpts to MG, Vol. III, Annex 49),
Annex 3, p. 189. WOG, Annex 16.
195 Ibid., para. 29.
196 Ibid., para. 29, Annex 4, p. 190.
197 UN Human Rights Council, Detailed findings of the Independent International Fact-Finding Mission on
Myanmar, UN Doc. A/HRC/42/ CRP.5 (16 September 2019), para. 140. MG (23 October 2020), Vol. III,
Annex 49; see also ibid., para. 213.
198 Ibid., para. 40.
70
take the Rohingya issue to the International Court of Justice”.199 Two days later, on 28
September 2019, Myanmar’s representative U Kyaw Tint Swe again dismissed the Fact-
Finding Mission’s reports as “biased and flawed, based not on facts but on narratives”, and
noted in particular that the “latest reports are even worse”.200
5.18 This exchange at the United Nations in 2019 confirms that the Parties continued to
hold clearly opposing views concerning the events that occurred in Rakhine State in
relation to the Rohingya: The Gambia agreed with the Fact-Finding Mission that genocidal
acts were committed by Myanmar against the Rohingya, in violation of its obligations
under the Convention; whereas Myanmar rejected such “biased and flawed” conclusions.
By specifically communicating its intention to bringing the matter to the Court, The
Gambia made clear that its dispute with Myanmar was in relation to holding Myanmar
accountable for genocide against the Rohingya, and its failure to fulfil its legal obligations
under the Convention. The Gambia’s statement in September 2019 thus removed any
possible doubt about Myanmar’s awareness of an impending legal case against it from The
Gambia in relation to its accountability under the Convention for its genocidal acts against
the Rohingya group.201 Myanmar could not possibly have been unaware, as of that date—
if not many months earlier—that The Gambia held views positively opposed to its own
regarding its legal responsibility for the Rohingya genocide.
199 UN General Assembly, 74th Session, 8th Plenary Meeting, Address by Mrs. Isatou Touray, Vice President
of the Republic of The Gambia, UN Doc. A/74/PV.8 (26 September 2019), p. 31. MG (23 October 2020), Vol.
III, Annex 51.
200 UN General Assembly, 74th Session, 12th Plenary Meeting, Address by Mr. Kyaw Tint Swe, Union
Minister for the Office of the State Counsellor of Myanmar, UN Doc. A/74/PV.12 (28 September 2019), p. 24.
MG (23 October 2020), Vol. III, Annex 52.
201 See Application of the International Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011, p. 84, para. 30.
71
B. THE GAMBIA’S NOTE VERBALE, AND MYANMAR’S NON-RESPONSE TO IT, FURTHER
DEMONSTRATE THE EXISTENCE OF A DISPUTE BETWEEN
THE PARTIES
1. The Note Verbale Confirms the Existence of a Dispute
5.19 In addition to the exchanges at the United Nations, The Gambia also sent Myanmar
a Note Verbale dated 11 October 2019 confirming their existing dispute over Myanmar’s
violations of the Genocide Convention and customary international law based on its acts
of genocide against the Rohingya group. The Note Verbale reads as follows:
“The Permanent Mission of the Republic of The Gambia to
the United Nations presents its compliments to the
Permanent Mission of the Republic of the Union of
Myanmar and has the honour to refer to all of the reports of
the United Nations Independent International Fact-Finding
Mission on Myanmar (“UN IIFFMM”), including its report
of 16 September 2019, UN Doc. A/HRC/42.CRP.5, as well
as related resolutions of the Organization of Islamic
Cooperation, including Resolution No. 4/46-MM of 2 March
2019 on the Situation of the Muslim Community in
Myanmar.
The Republic of The Gambia is deeply troubled by the
findings of the UN IIFFMM, and in particular its findings
regarding the ongoing genocide against the Rohingya people
of the Republic of the Union of Myanmar in violation of
Myanmar’s obligations under the Convention on the
Prevention and Punishment of the Crime of Genocide
(“Genocide Convention”). The Gambia considers those
findings well-supported by the evidence and highly credible,
and is disturbed by Myanmar’s absolute denial of those
findings and its refusal to acknowledge and remedy its
responsibility for the ongoing genocide against the Rohingya
population of Myanmar, as required under the Genocide
Convention and customary international law.
The Gambia fully endorses OIC Resolution No. 4/26-MM of
2 March 2019, which ‘Calls upon the Government of
Myanmar: (a) To honor its obligations under International
Law and Human Rights covenants, and to take all measures
72
to immediately halt all vestiges and manifestations of the
practice of genocide against Rohingya Muslims’.
The Gambia emphatically rejects Myanmar’s denial of its
responsibility for the ongoing genocide against Myanmar’s
Rohingya population, and its refusal to fulfill its obligations
under the Genocide Convention and customary international
law.
With somber reflection on the goals of the Genocide
Convention and its obligations on all States, The Gambia
understands Myanmar to be in ongoing breach of those
obligations under the Convention and under customary
international law. The Gambia insists that Myanmar take all
necessary actions to comply with these obligations,
including but not limited to its obligations to make
reparations to the victims and to provide guarantees and
assurances of non-repetition.”202
5.20 The Note Verbale on its face establishes that the Parties held clearly opposite views
regarding Myanmar’s fulfilment of its obligations under the Genocide Convention and
customary international law in relation to Myanmar’s responsibility for acts of genocide
against the Rohingya.
5.21 Specifically, the Note Verbale invoked the reports and findings of the UN Fact-
Finding Mission, “in particular its findings regarding the ongoing genocide against the
Rohingya people of … Myanmar in violation of Myanmar’s obligations under the …
Genocide Convention”, which The Gambia characterized as “well-supported by the
evidence”. The Gambia acknowledged “Myanmar’s absolute denial of those findings”,
202 Note Verbale from Permanent Mission of the Republic of The Gambia to the United Nations to Permanent
Mission of the Republic of the Union of Myanmar to the United Nations, No. GPM/NV241/Vol. 1(LY) (11
October 2019). OG (2 December 2019), Annex 1.
73
which Myanmar called “biased and flawed”203 in exchanges at the United Nations. The
Note Verbale thus made plain the Parties’ clearly opposed views as to the factual matter of
Myanmar’s acts of genocide against the Rohingya as reported by the UN Fact-Finding
Mission.
5.22 Beyond this, the Note Verbale clearly set forth the legal nature of the dispute
between the Parties. It noted that the Fact-Finding Mission’s conclusions regarding the
ongoing genocide of the Rohingya demonstrate that this is “in violation of Myanmar’s
obligations under the … Genocide Convention”.204 The Gambia then condemned
Myanmar’s “refusal to acknowledge and remedy its responsibility for the ongoing genocide
against the Rohingya population of Myanmar, as required under the Genocide Convention
and customary international law”.205 It further “reject[ed] Myanmar’s denial of its
responsibility for the ongoing genocide against Myanmar’s Rohingya population, and its
refusal to fulfill its obligations under the Genocide Convention and customary international
law”.206 Additionally, the Note Verbale reiterated the call on Myanmar—as expressed in
earlier OIC resolutions—to honour its legal obligations and stop all acts of genocide against
the Rohingya. The Gambia also made clear that, in its view, Myanmar is “in ongoing breach
of those obligations under the Convention and under customary international law”.207 The
Gambia concluded by “insist[ing] that Myanmar take all necessary actions to comply with
203 UN General Assembly, 74th Session, 12th Plenary Meeting, Address by Mr. Kyaw Tint Swe, Union
Minister for the Office of the State Counsellor of Myanmar, UN Doc. A/74/PV.12 (28 September 2019), p.
24. MG (23 October 2020), Vol. III, Annex 52.
204 Note Verbale from Permanent Mission of the Republic of The Gambia to the United Nations to Permanent
Mission of the Republic of the Union of Myanmar to the United Nations, No. GPM/NV241/Vol. 1(LY) (11
October 2019). OG (2 December 2019), Annex 1.
205 Ibid.
206 Ibid.
207 Ibid.
74
these obligations, including but not limited to its obligations to make reparations to the
victims and to provide guarantees and assurances of non-repetition”.208
5.23 There can thus be no doubt that the Note Verbale confirmed that The Gambia and
Myanmar held clearly opposite views concerning the question of Myanmar’s fulfilment of
its legal obligations in relation to its acts of genocide against the Rohingya group. The
Gambia explicitly and emphatically opposed Myanmar’s claims of non-responsibility for
the Rohingya genocide, as well as its rejection of the findings of the UN Fact-Finding
Mission in regard to Myanmar’s genocidal acts against that group. The subject matter of
the dispute, the relevant treaty at issue and legal remedies under customary international
law were identified explicitly in the Note Verbale, going well beyond the minimum
requirements for establishing a dispute under the Court’s jurisprudence.
2. Myanmar’s Lack of Response to the Note Verbale Further Confirms the Existence
of a Dispute
5.24 Myanmar did not respond to the Note Verbale, even though the gravity of the
communication and The Gambia’s insistence on Myanmar desisting from acts of genocide
clearly called for a response. As the Court observed in its Order of 23 January 2020, “[i]n
light of the gravity of the allegations made therein, the Court considers that the lack of
response may be another indication of the existence of a dispute between the Parties.”209
5.25 Myanmar claims that it “was entitled to an appropriate period of time to give a
considered reaction”, including time to consider “all of the details of the FFM reports”,
noting that the 2019 Detailed Findings of the Fact-Finding Mission had “only been issued
less than a month earlier, on 16 September 2019”.210 About this, Myanmar is factually
208 Ibid.
209 Provisional Measures Order, para. 28.
210 POM, para. 714.
75
incorrect. It had received the 2019 Detailed Findings report on 11 September 2019,211 and
thus had one full month to review that report in detail before it received The Gambia’s
Note Verbale. Moreover, Myanmar’s representative had already provided Myanmar’s
reaction to the report, in his remarks to the UN General Assembly on 28 September 2019,
declaring that, in Myanmar’s view, the Fact-Finding Mission’s “latest reports are even
worse”212 than prior ones. Those remarks clearly indicated that, as of 28 September 2019,
Myanmar was already sufficiently aware of the contents of the 2019 Detailed Report to
criticize it at the United Nations.
5.26 Indeed, Myanmar had the Fact-Finding Mission’s August 2019 report since 31 July
2019,213 and the 2018 reports for well over a year. The findings of those reports were thus
well-known to Myanmar, and its responses to them were already a matter of public record,
long before it received The Gambia’s Note Verbale on 11 October 2019. In sum, The
Gambia’s Note did not raise any factual or legal issues of which Myanmar was unaware,
or to which it had not already responded. It thus strains credulity for Myanmar to argue
that it lacked sufficient time to formulate a response to The Gambia’s assertions. Far more
credible, in the circumstances, is the conclusion that its silence in the face of such grave
allegations is further compelling evidence of a dispute between the two States.
5.27 Finally, Myanmar’s silence cannot mean that it was unaware that The Gambia
positively opposed its views on its responsibility for the Rohingya genocide. Five days
211 UN Human Rights Council, Detailed findings of the Independent International Fact-Finding Mission on
Myanmar, UN Doc. A/HRC/42/CRP.5 (16 September 2019) (additional excerpts to MG, Vol. III, Annex 49),
para. 29. WOG, Annex 16.
212 UN General Assembly, 74th Session, 12th Plenary Meeting, Address by Mr. Kyaw Tint Swe, Union
Minister for the Office of the State Counsellor of Myanmar, UN Doc. A/74/PV.12 (28 September 2019), p.
24 (emphasis added). MG (23 October 2020), Vol. III, Annex 52.
213 UN Human Rights Council, Detailed findings of the Independent International Fact-Finding Mission on
Myanmar, UN Doc. A/HRC/42/CRP.5 (16 September 2019) (additional excerpts to MG, Vol. III, Annex 49),
Annex 3, p. 189. WOG, Annex 16.
76
after the Application was filed, on 16 November 2019, the Spokesperson for Myanmar’s
Government admitted in a public statement that “the government had expected over a
month before that Myanmar could face a suit at ICJ”.214 Myanmar cannot therefore deny
that The Gambia’s Note Verbale of 11 October 2019 (just “over a month before”) gave it
explicit notice of a factual and legal dispute over Myanmar’s genocidal acts against the
Rohingya group, a dispute in which the two States’ views were positively opposed.
C. THIS CASE CONCERNS THE GAMBIA’S DISPUTE WITH MYANMAR
5.28 Myanmar argues that, “in substance, the dispute is between the OIC and Myanmar”,
not The Gambia.215
5.29 As demonstrated above, in Chapter 2 of these Written Observations, the dispute at
the heart of this case is between The Gambia and Myanmar. Other States, including
Member States of the OIC, may also have disputes with Myanmar. But all that matters here
is that a dispute plainly exists between The Gambia and Myanmar.216
5.30 The remarks of The Gambia’s Agent during the hearing on provisional measures
are worth recalling:
“The Gambia has been open about its dispute with Myanmar.
We openly raised this dispute at successive sessions of the
United Nations General Assembly. We have openly
welcomed support for this effort from other States, including
214 Min Naing Soe, “Myanmar to respond to Gambia lawsuit at ICJ in line with international laws”, Eleven
News (16 November 2019). MG (23 October 2020), Vol. IX, Annex 316; Memorial of The Gambia (23
October 2020), para. 2.18. See Obligations concerning Negotiations relating to Cessation of the Nuclear
Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections,
Judgment, I.C.J. Reports 2016, p. 851, para. 43 (“Conduct subsequent to the application (or the application
itself) may be relevant for various purposes, in particular to confirm the existence of a dispute”.).
215 POM, para. 728.
216 See East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 100, para. 22.
77
member States of the Organisation of Islamic Cooperation.
Indeed, it was, from beginning to end, The Gambia’s
initiative to table resolutions and form a committee and seek
the broader support of the other 56 member States of the
Organisation of Islamic Cooperation. The Gambia is proud
to have the diplomatic and political support of the other 56
member States of the OIC — and of other supportive States,
like Canada and the Netherlands — as The Gambia, in its
sovereign capacity, pursues this case against Myanmar.
It was The Gambia alone that sent the Note Verbale to
Myanmar to clearly spell out the nature of this dispute and
put Myanmar on notice. And it was The Gambia alone that
has filed the Application and Request for provisional
measures that is now before the Court.”217
III. Myanmar’s Attempt to Erect a Higher Bar for Establishing a Dispute Should
be Rejected
5.31 Myanmar cannot challenge these facts, and it makes little effort to do so. Instead,
it bypasses the Court’s clearly established standards for identifying the existence of a
dispute, and purports to invent new, heightened standards for purposes of this case. None
of the new standards proposed by Myanmar has ever been applied by the Court, with good
reason, and it should not apply them here.
5.32 First, contrary to the Court’s decision in the Nuclear Arms and Disarmament cases,
in which the Court held that the Respondent’s awareness of the Applicant’s clearly opposed
views was sufficient to establish a dispute, Myanmar asserts that “the existence of a dispute
in fact requires awareness by both parties of the positively opposed views of the respective
217 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia
v. Myanmar), Provisional Measures, Verbatim Record CR 2019/20 of Public Sitting held on 12 December
2019, p. 40, paras. 5-6 (Tambadou).
78
other side”.218 Myanmar argues that the Applicant must provide evidence both that the
Respondent was aware of the Applicant’s clearly opposed views, and that the Applicant
was then made aware of Respondent’s opposition to the Applicant’s claim.219
5.33 Even under this hypothetical standard, a dispute would plainly exist in this case.
The evidence establishes that The Gambia was well aware that Myanmar positively
opposed its claims. Specifically, the claims asserted in The Gambia’s Note Verbale of 11
October 2019 echoed the findings and conclusions of the UN Fact Finding Mission, in its
reports of 2018 and 2019, which Myanmar had already rejected. The Gambia was thus well
aware of Myanmar’s positive opposition to the claims it asserted in its Note Verbale of 11
October 2019, which confirmed the existence of a dispute between the two States.
5.34 In raising a new standard for demonstrating the existence of a dispute, Myanmar
seeks to create a one-way veto in which a Respondent’s silence following an Applicant’s
legal claim could prevent a finding of positive opposition. Proposing such a standard can
only be intended to impose a burden on the Applicant that it could not meet if the
Respondent were to remain silent, as Myanmar did after receiving The Gambia’s Note
Verbale of 11 October 2019. Myanmar’s attempt to fashion a new evidentiary burden to
serve its own purposes in this case should be recognized for what it is, and rejected by the
Court.
5.35 Myanmar defends its proposed new requirement as necessary to allow the
Respondent “an opportunity to react to the claim of the applicant State before proceedings
are brought before this Court”.220 As Myanmar would have it, a dispute “cannot exist until
the respondent State has become aware of the claim of the applicant State in a way that
218 POM, para. 520 (emphasis added).
219 Ibid., para. 523.
220 Ibid., para. 526 (emphasis omitted).
79
enables the respondent State to give a reaction, and until the respondent State has had an
appropriate opportunity to react”.221
5.36 Myanmar does not specify how much time a Respondent State, such as itself,
should be given to react to a claim, before a dispute can be said to crystallize. Apparently,
it believes that the 30 days that elapsed between its receipt of The Gambia’s Note Verbale
and the filing of The Gambia’s Application were insufficient. To be sure, the time within
which it would be reasonable for a State to respond to a legal claim that has been made
against it by another State will vary with the circumstances. Here, as described above,
Myanmar had already reacted to the factual and legal claims asserted by The Gambia in its
Note Verbale when it responded to the same factual and legal claims in the 2018 and 2019
reports by the UN Fact Finding Mission. Having rejected those claims already, a dispute
with The Gambia already existed as of the time The Gambia sent its Note Verbale. The
Note Verbale, which recited Myanmar’s rejection of the claims set out by the Fact Finding
Mission, confirmed the existence of the dispute. No further reaction by Myanmar was
required. In any event, in the circumstances, 30 days was more than sufficient time for it
to respond to The Gambia’s Note. Its silence is further evidence of its positive opposition
to The Gambia’s claims.
5.37 Myanmar also proposes new and more exacting standards of specificity for
demonstrating the existence of a dispute. Under its proposed test, “it will be necessary for
the prospective respondent State to be made aware of the facts said to amount to a breach
of international law, as well as of the provisions of international law said to have been
thereby breached”.222 It also asserts that all claims made in the Application “must be
221 Ibid.
222 Ibid., para. 531 (emphasis added).
80
identifiably the same” as the “claims that were in dispute before the application was
filed”.223
5.38 Even that hypothetical standard is met here. The Gambia’s factual and legal claims,
communicated to Myanmar well in advance of its Application, were based on, and cited,
the UN Fact Finding Mission’s 2018 and 2019 reports. The Gambia made it crystal clear
to Myanmar that it was accusing Myanmar of genocidal acts against the Rohingya group
in violation of its international legal obligations, and that its legal claims were based on the
facts set out in the Fact Finding Mission’s reports. This plainly satisfies the standards for
establishing the existence of a dispute set by the Court in its jurisprudence.
5.39 Myanmar, in contrast, seeks to impose a level of specificity in the assertion of
claims that would, in essence, obligate the Applicant State to fully develop its factual and
legal claims and share them with the Respondent before it seizes the Court. This would
impose a major new burden on potential Applicant States and significantly restrict access
to the Court. There is no justification for it in the Court’s jurisprudence, in the decisions of
other international courts or tribunals, or in any learned treatises. The issue is whether a
dispute between two States exists. What is required is sufficient evidence that their views,
on a matter of fact or law, are positively opposed.224 That standard is plainly met here.
***
5.40 In sum, Myanmar’s attempts to create and apply new standards for determining the
existence of a dispute are baseless and prejudicial, and must be rejected. The Court’s long-
223 Ibid., para. 552.
224 Provisional Measures Order, para. 20 citing Application of the International Convention on the
Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All
Forms of Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April
2017, I.C.J. Reports 2017, p. 115, para. 22 (citing Interpretation of Peace Treaties with Bulgaria, Hungary
and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74).
81
established standards on the existence of a dispute are controlling, and, as applied to this
case, they clearly indicate the existence of a dispute between The Gambia and Myanmar
relating to Myanmar’s fulfilment of its obligations under the Genocide Convention. For
the Court to accede to Myanmar’s objection would undermine the effectiveness of the
Genocide Convention. Accordingly, the Court should again reject Myanmar’s fourth
preliminary objection.
82
83
SUBMISSIONS
For the reasons set forth above, The Gambia respectfully requests that the Court:
1. Reject the Preliminary Objections presented by Myanmar;
2. Find that it has jurisdiction to hear the claims presented by The Gambia as set
forth in its Application and Memorial, and that these claims are admissible; and
3. Proceed to hear those claims on the merits.
Respectfully submitted,
_____________________________
H.E. Dawda Jallow
Attorney General and Minister of Justice
AGENT OF THE GAMBIA
20 April 2021
84
85
CERTIFICATION
I certify that all Annexes are true copies of the documents referred to.
_____________________________
H.E. Dawda Jallow
Attorney General and Minister of Justice
AGENT OF THE GAMBIA
20 April 2021
86
87
LIST OF ANNEXES
Annex 1 Agreement Concerning the Sovereignty, Independence, Territorial Integrity
and Inviolability, Neutrality and National Unity of Cambodia (23 October
1991)
Annex 2 The Republic of The Gambia, Ministry of Justice, Press Release
(11 November 2019)
Annex 3 United Nations, Press Release: Secretary-General Welcomes International
Court of Justice Order on The Gambia v. Myanmar Genocide Convention
Case (23 January 2020)
Annex 4 Republic of the Union of Myanmar: State Counsellor Office, Statement by
H.E. U Kyaw Tint Swe, Union Minister for the Office of the State Counsellor
and Chairman of the Delegation of the Union of Myanmar at the General
Debate of the 73rd Session of the United Nations General Assembly
(28 September 2018)
Annex 5 UN Economic and Social Council, Draft Convention on the Crime of
Genocide, E/447 (26 June 1947), reproduced in Abtahi & Webb, The
Genocide Convention: The Travaux Préparatoires (Martinus Nijhoff 2008)
Annex 6 Draft Convention on the Crime of Genocide: communications received by
the Secretary-General, Communication received from the United States of
America, A/401 (30 September 1947), reproduced in Abtahi & Webb, The
Genocide Convention: The Travaux Préparatoires (Martinus Nijhoff 2008)
Annex 7 UN Economic and Social Council, Ad hoc Committee on Genocide,
Summary Record of the Twentieth Meeting on 26 April 1948,
E/AC.25/SR.20 (4 May 1948), reproduced in Abtahi & Webb, The
Genocide Convention: The Travaux Préparatoires (Martinus Nijhoff 2008)
Annex 8 UN Economic and Social Council, Ad hoc Committee on Genocide, Report
of the Committee and Draft Convention drawn up by the Committee, E/794
(24 May 1948), reproduced in Abtahi & Webb, The Genocide Convention:
The Travaux Préparatoires (Martinus Nijhoff 2008)
Annex 9 UN General Assembly, Sixth Committee, Third Session, 97th Meeting,
A/C.6/SR.97 (9 November 1948), reproduced in Abtahi & Webb, The
Genocide Convention: The Travaux Préparatoires (Martinus Nijhoff 2008)
88
Annex 10 UN General Assembly, Sixth Committee, Third Session,103rd Meeting,
A/C.6/SR.103 (12 November 1948), reproduced in Abtahi & Webb, The
Genocide Convention: The Travaux Préparatoires (Martinus Nijhoff 2008)
Annex 11 UN General Assembly, Sixth Committee, Third Session 104th Meeting,
A/C.6/SR.104 (13 November 1948), reproduced in Abtahi & Webb, The
Genocide Convention: The Travaux Préparatoires (Martinus Nijhoff 2008)
Annex 12 UN General Assembly, Sixth Committee, Third Session, 105th Meeting,
A/C.6/SR.105 (13 November 1948), reproduced in Abtahi & Webb, The
Genocide Convention: The Travaux Préparatoires (Martinus Nijhoff 2008)
Annex 13 UN General Assembly, Sixth Committee, Third Session, Genocide: Draft
Convention and Report of the Economic and Social Council, A/760
(3 December 1948), reproduced in Abtahi & Webb, The Genocide
Convention. The Travaux Préparatoires (Martinus Nijhoff 2008)
Annex 14 UN General Assembly, 178th Plenary Meeting, Draft convention on
genocide: reports of the Economic and Social Council and of the Sixth
Committee, A/PV.178 (9 December 1948), reproduced in Abtahi & Webb,
The Genocide Convention: The Travaux Préparatoires (Martinus Nijhoff
2008)
Annex 15 UN General Assembly, 179th Plenary Meeting, Continuation of the
discussion on the draft convention on genocide: reports of the Economic
and Social Council and of the Sixth Committee, A/PV.179 (9 December
1948), reproduced in Abtahi & Webb, The Genocide Convention:
The Travaux Préparatoires (Martinus Nijhoff 2008)
Annex 16 UN Human Rights Council, Detailed findings of the Independent
International Fact-Finding Mission on Myanmar, UN Doc. A/HRC/42/
CRP.5 (16 September 2019) (additional excerpts to MG, Vol. III,
Annex 49)
Annex 17 UN OHCHR, Human Rights Council Intersessional Meeting on the
Prevention of Genocide: Statement by Nada Al-Nashif, Deputy High
Commissioner for Human Rights (10 February 2021)
Annex 18 William A. Schabas, Genocide in International Law (Cambridge University
Press 2000)
89
Annex 19 Shabtai Rosenne, The Law and Practice of the International Court, 1920-
2005 (Martinus Nijhoff Publishers 2006)
Annex 20 Giorgio Gaja, ‘The Role of the United Nations in Preventing and
Suppressing Genocide’ in Paola Gaeta (ed.), The UN Genocide Convention:
A Commentary (Oxford University Press 2008)
Annex 21 Robert Kolb, ‘The Compromissory Clause of the Convention’ in Paola
Gaeta (ed.), The UN Genocide Convention: A Commentary (Oxford
University Press 2008)
Annex 22 Christian Tomuschat, ‘Competence of the Court, Article 36’ in
Zimmermann, Tams, Oellers-Frahm, Tomuschat (eds), The Statute of the
International Court of Justice: A Commentary (3rd edition, Oxford
University Press 2019)
Annex 23 Oxford English Dictionary, “to call upon”
Annex 1
Agreement Concerning the Sovereignty, Independence, Territorial Integrity and Inviolability,
Neutrality and National Unity of Cambodia (23 October 1991)
Annex 1
Peace Agreements Digital Collection
Cambodia Agreement Concerning the Sovereignty, Independence, Territorial Integrity and
Inviolability, Neutrality and National Unity of Cambodia
Agreement Concerning the Sovereignty, Independence, Territorial Integrity and Inviolability,
Neutrality and National Unity of Cambodia
Australia, Brunei Darussalam, Cambodia, Canada, the People's Republic of China, the French
Republic, the Republic of India, the Republic of Indonesia, Japan, the Lao People's Democratic
Republic, Malaysia, the Republic of the Philippines, the Republic of Singapore, the Kingdom of
Thailand, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and
Northern Ireland, the United States of America, the Socialist Republic of Viet Nam and the Socialist
Federal Republic of Yugoslavia,
In the presence of the Secretary-General of the United Nations,
Convinced that a comprehensive political settlement for Cambodia is essential for the long-term
objective of maintaining peace and security in South-East Asia,
Recalling their obligations under the Charter of the United Nations and other rules of international
law,
Considering that full observance of the principles of noninterference and non-intervention in the
internal and external affairs of States is of the greatest importance for the maintenance of
international peace and security,
Reaffirming the inalienable right of States freely to determine their own political, economic,
cultural and social systems in accordance with the will of their peoples, without outside interference,
subversion, coercion or threat in any form whatsoever,
Desiring to promote respect for and observance of human rights and fundamental freedoms in
conformity with the Charter of the United Nations and other relevant international instruments,
Have agreed as follows:
Article 1
1. Cambodia hereby solemnly undertakes to maintain, preserve and defend its sovereignty,
independence, territorial integrity and inviolability, neutrality, and national unity; the
perpetual neutrality of Cambodia shall be proclaimed and enshrined in the Cambodian
constitution to be adopted after free and fair elections.
2. To this end, Cambodia undertakes:
Annex 1
a. To refrain from any action that might impair the sovereignty, independence and
territorial integrity and inviolability of other States;
b. To refrain from entering into any military alliances or other military agreements with
other States that would be inconsistent with its neutrality, without prejudice to
Cambodia's right to acquire the necessary military equipment, arms, munitions and
assistance to enable it to exercise its inherent right of self-defence and to maintain law
and order;
c. To refrain from interference in any form whatsoever, whether direct or indirect, in the
internal affairs of other States;
d. To terminate treaties and agreements that are incompatible with its sovereignty,
independence, territorial integrity and inviolability, neutrality, and national unity;
e. To refrain from the threat or use of force against the territorial integrity or political
independence of any State, or in any other manner inconsistent with the purposes of
the United Nations;
f. To settle all disputes with other States by peaceful means;
g. To refrain from using its territory or the territories of other States to impair the
sovereignty, independence, and territorial integrity and inviolability of other States;
h. To refrain from permitting the introduction or stationing of foreign forces, including
military personnel, in any form whatsoever, in Cambodia, and to prevent the
establishment or maintenance of foreign military bases, strong points or facilities in
Cambodia, except pursuant to United Nations authorization for the implementation of
the comprehensive political settlement.
Article 2
1. The other parties to this Agreement hereby solemnly undertake to recognize and to respect in
every way the sovereignty, independence, territorial integrity and inviolability, neutrality and
national unity of Cambodia.
2. To this end, they undertake:
a. To refrain from entering into any military alliances or other military agreements with
Cambodia that would be inconsistent with Cambodia's neutrality, without prejudice to
Cambodia's right to acquire the necessary military equipment, arms, munitions and
assistance to enable it to exercise its inherent right of self-defence and to maintain law
and order;
b. To refrain from interference in any form whatsoever, whether direct or indirect, in the
internal affairs of Cambodia;
c. To refrain from the threat or use of force against the territorial integrity or political
independence of Cambodia, or in any other manner inconsistent with the purposes of
the United Nations;
Annex 1
d. To settle all disputes with Cambodia by peaceful means;
e. To refrain from using their territories or the territories of other States to impair the
sovereignty, independence, territorial integrity and inviolability, neutrality and
national unity of Cambodia;
f. To refrain from using the territory of Cambodia to impair the sovereignty,
independence and territorial integrity and inviolability of other States;
g. To refrain from the introduction or stationing of foreign forces, including military
personnel, in any form whatsoever, in Cambodia and from establishing or
maintaining military bases, strong points or facilities in Cambodia, except pursuant to
United Nations authorization for the implementation of the comprehensive political
senlement.
Article 3
1. All persons in Cambodia shall enjoy the rights and freedoms embodied in the Universal
Declaration of Human Rights and other relevant international human rights instruments.
2. To this end,
a. Cambodia undertakes:
to ensure respect for and observance of human rights and fundamental
freedoms in Cambodia;
to support the right of all Cambodian citizens to undertake activities that
would promote and protect human rights and fundamental freedoms;
to take effective measures to ensure that the policies and practices of the past
shall never be allowed to return:
to adhere to relevant international human rights instruments;
b. The other parties to this Agreement undertake to promote and encourage respect for
and observance of human rights and fundamental freedoms in Cambodia as embodied
in the relevant international instruments in order, in particular, to prevent the
recurrence of human rights abuses.
3. The United Nations Commission on Human Rights should continue to monitor closely the
human rights situation in Cambodia, including, if necessary, by the appointment of a Special
Rapporteur who would report his findings annually to the Commission and to the General
Assembly.
Article 4
The parties to this Agreement call upon all other States to recognize and respect in every way the
sovereignty, independence, territorial integrity and Inviolability, neutrality and national unity of
Annex 1
Cambodia and to refrain from any action inconsistent with these principles or with other provisions
of this Agreement.
Article 5
1. In the event of a violation or threat of violation of the sovereignty, independence, territorial
integrity and inviolability, neutrality or national unity of Cambodia, or of any of the other
commitments herein, the parties to this agreement undertake to consult immediately with a
view to adopting all appropriate steps to ensure respect for these commitments and resolving
any such violations through peaceful means.
2. Such steps may include, inter alia, reference of the matter of the Security Council of the
United Nations or recourse to the means for the peaceful settlement of disputes referred to in
Article 33 of the Charter of the United Nations.
3. The parties to this Agreement may also call upon the assistance of the co-Chairmen of the
Paris Conference on Cambodia.
4. In the event of serious violations of human rights in Cambodia, they will call upon the
competent organs of the United Nations to take such other steps as are appropriate for the
prevention and suppression of such violations in accordance with the relevant international
instruments.
Article 6
This Agreement shall enter into force upon signature.
Article 7
This Agreement shall remain open for accession by all States. The instruments of accession shall be
deposited with the Governments of the French Republic and the Republic of Indonesia. For each
State acceding to this Agreement, it shall enter into force on the date of deposit of its instrument of
accession.
Article 8
The original of this Agreement, of which the Chinese, English, French, Khmer and Russian texts are
equally authentic, shall be deposited with the Governments of the French Republic and the Republic
of Indonesia, which shall transmit certified true copies to the Governments of the other States
participating in the Paris Conference on Cambodia and to the Secretary-General of the United
Nations.
In witness whereof the undersigned plenipotentiaries, being duly authorized thereto, have signed
this Agreement.
Done at Paris this twenty-third day of October, one thousand nine hundred and ninety-one.
Posted by USIP Library on: February 22 2000
Source Name: United Nations, Department of Public Information, Agreements on a Comprehensive Political Settlement
of the Cambodia Conflict: Paris, 23 October 1991, January 1992, 7-40.
Annex 2
The Republic of The Gambia, Ministry of Justice, Press Release (11 November 2019)
Annex 2
Annex 2
Annex 2
Annex 3
United Nations, Press Release: Secretary-General Welcomes International Court of Justice
Order on The Gambia v. Myanmar Genocide Convention Case (23 January 2020)
Annex 3
United Nations
SG/SM/19946
23 JANUARY 2020
PRESS RELEASE
SECRETARY-GENERAL
STATEMENTS AND
MESSAGES
Secretary-General Welcomes International Court of Justice Order on The Gambia
v. Myanmar Genocide Convention Case
The following statement was issued today by the Spokesman for UN Secretary-General
António Guterres on the Order of the International Court of Justice on the Request for the
indication of provisional measures in the case concerning the Application of the Convention on
the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar):
The Secretary-General welcomes the Order of the International Court of Justice,
indicating provisional measures in the case of The Gambia against Myanmar on the alleged
breaches of the Convention on the Prevention and Punishment of the Crime of Genocide.
The Secretary-General notes the Court’s unanimous decision to order Myanmar, in
accordance with its obligations under the Genocide Convention, “to take all measures within
its power” in relation to the members of the Rohingya group in its territory, to prevent the
commission of acts within the scope of Article II of the Convention, including killing, causing
serious bodily or mental harm, deliberately inflicting conditions of life calculated to bring
about the group’s destruction and imposing measures intended to prevent births.
He also notes the Court’s instruction to Myanmar to ensure that its military, as well as
any irregular armed units directed or supported by it and any organizations and persons subject
to its control, do not commit such acts; also, that they do not conspire to commit genocide, do
not directly and publicly incite the commission of genocide, do not attempt to commit
genocide and are not complicit in genocide.
Further, the Secretary-General notes the Court’s order to Myanmar to ensure the
preservation of evidence related to allegations of acts within the scope of the Genocide
Secretary-General Welcomes International Court of Justice Order on The Gambia v. Mya... Page 1 of 2
https://www.un.org/press/en/2020/sgsm19946.doc.htm 3/25/2021
Convention, as well as to report to the Court on the implementation of all provisional measures
on a regular basis.
The Secretary-General strongly supports the use of peaceful means to settle
international disputes. He further recalls that, pursuant to the Charter and to the Statute of the
Court, decisions of the Court are binding and trusts that Myanmar will duly comply with the
Order from the Court.
In accordance with the Statute of the Court, the Secretary-General will promptly
transmit the notice of the provisional measures ordered by the Court to the Security Council.
For information media. Not an official record.
Secretary-General Welcomes International Court of Justice Order on The Gambia v. Mya... Page 2 of 2
https://www.un.org/press/en/2020/sgsm19946.doc.htm 3/25/2021
Annex 3
Annex 4
Republic of the Union of Myanmar: State Counsellor Office, Statement by H.E. U Kyaw Tint Swe,
Union Minister for the Office of the State Counsellor and Chairman of the Delegation of the Union
of Myanmar at the General Debate of the 73rd Session of the United Nations General Assembly
(28 September 2018)
Annex 4
Annex 4
Annex 4
Annex 4
Annex 4
Annex 4
Annex 5
UN Economic and Social Council, Draft Convention on the Crime of Genocide, E/447 (26 June 1947),
reproduced in Abtahi & Webb, The Genocide Convention: The Travaux Préparatoires
(Martinus Nijhoff 2008)
Th e Genocide Convention
Th e Travaux Préparatoires
By
Hirad Abtahi and Philippa Webb
Volume One
2008
Annex 5
E/396/Rev.1 ................................................................................. 58
E/325 ........................................................................................... 60
A/AC.10/41 ................................................................................. 61
A/AC.10/42 ................................................................................. 115
A/AC.10/42/Rev.1 ....................................................................... 124
A/AC.10/42/Add.1 ...................................................................... 133
A/AC.10/15 ................................................................................. 134
A/AC.10/29 ................................................................................. 137
A/AC.10/43 ................................................................................. 143
A/AC.10/44 ................................................................................. 145
A/AC.10/46 ................................................................................. 146
A/AC.10/46/Corr.1 ...................................................................... 148
A/AC.10/SR.28 ............................................................................ 150
A/AC.10/SR.29 ............................................................................ 171
A/AC.10/SR.29/Corr.1 ................................................................ 197
A/AC.10/SR.30 ............................................................................ 198
A/AC.10/55 ................................................................................. 208
Secretariat Draft E/447 ................................................................ 209
E/476 ........................................................................................... 283
E/SR.86 ......................................................................................... 285
E/AC.7/22 ................................................................................... 287
E/AC.7/23 ................................................................................... 288
E/AC.7/SR.15 .............................................................................. 289
E/AC.7/31 ................................................................................... 295
E/AC.7/SR.17 .............................................................................. 297
E/SR.107 ..................................................................................... 300
E/522 ........................................................................................... 301
E/573 ........................................................................................... 302
A/362 ........................................................................................... 331
A/C.6/147 .................................................................................... 363
A/401 ........................................................................................... 366
A/C.6/149 .................................................................................... 385
A/C.6/SR.39 ................................................................................ 387
A/C.6/151 .................................................................................... 391
A/C.6/SR.40 ................................................................................ 392
A/C.6/155 .................................................................................... 394
A/C.6/SR.41 ................................................................................ 395
A/C.6/159 .................................................................................... 400
viii Contents
Annex 5
United Nations Nations Unies UNRESTRICTED
ECONOMIC CONSEIL E/447
AND SOCIAL ECONOMIQUE 26 June 1947
COUNCIL ET SOCIAL ENGLISH
ORIGINAL: FRENCH
DRAFT CONVENTION ON THE CRIME OF GENOCIDE
Th is draft convention was prepared by the Secretary-General of the United
Nations in pursuance of the resolution of the Economic and Social Council
dated 28 March 1947.
Secretariat Draft E/447 209
Annex 5
214 Secretariat Draft E/447
PART I
DRAFT CONVENTION FOR THE PREVENTION AND
PUNISHMENT OF GENOCIDE
Preamble
Th e High Contracting Parties proclaim that Genocide, which is the intentional
destruction of a group of human beings, defi es universal conscience,
infl icts irreparable loss on humanity by depriving it of the cultural and
other contributions of the group so destroyed, and is in violent contradiction
with the spirit and aims of the United Nations.
1. Th ey appeal to the feelings of solidarity of all members of the international
community and call upon them to oppose this odious crime.
2. Th ey proclaim that the acts of genocide defi ned by the present Convention
are crimes against the Law of Nations, and that the fundamental
exigencies of civilization, international order and peace require their
prevention and punishment.
3. Th ey pledge themselves to prevent and to repress such acts wherever
they may occur.
Article I
Defi nitions
(Protected Groups) I. Th e purpose of this Convention is to prevent
the destruction of racial, national, linguistic,
religious or political groups of human
beings.
(Acts qualified as Genocide) II. In this Convention, the word “genocide”
means a criminal act directed against any
one of the aforesaid groups of human beings,
with the purpose of destroying it in whole or
in part, or of preventing its preservation or
development.
Annex 5
Secretariat Draft E/447 215
Such acts consist of:
1. Causing the death of members of a group
or injuring their health or physical integrity
by:
(a) group massacres or individual executions;
or
(b) subjection to conditions of life which,
by lack of proper housing, clothing,
food, hygiene and medical care, or
excessive work or physical exertion
are likely to result in the debilitation
or death of the individuals; or
(c) mutilations and biological experiments
imposed for other than curative purposes;
or
(d) deprivation of all means of livelihood,
by confiscation of property,
looting, curtailment of work, denial
of housing and of supplies otherwise
available to the other inhabitants of
the territory concerned.
2. Restricting births by:
(a) sterilization and/or compulsory abortion;
or
(b) segregation of the sexes; or
(c) obstacles to marriage.
3. Destroying the specifi c characteristics of
the group by:
(a) forced transfer of children to another
human group; or
(b) forced and systematic exile of individuals
representing the culture of a
group; or
(c) prohibition of the use of the national
language even in private intercourse; or
(d) systematic destruction of books printed
in the national language or of
religious works or prohibition of new
publications; or
(e) systematic destruction of historical or
religious monuments or their diversion
to alien uses, destruction or dispersion
of documents and objects of historical,
artistic, or religious value and of
objects used in religious worship.
Annex 5
216 Secretariat Draft E/447
Article II
(Punishable Off ences) I. Th e following are likewise deemed to be crimes
of genocide:
1. any attempt to commit genocide;
2. the following preparatory acts:
(a) studies and research for the purpose
of developing the technique of genocide;
(b) setting up of installations, manufacturing,
obtaining, possessing or supplying
of articles or substances with the
knowledge that they are intended for
genocide;
(c) issuing instructions or orders, and
distributing tasks with a view to committing
genocide.
II. Th e following shall likewise be punishable:
1. wilful participation in acts of genocide of
whatever description;
2. direct public incitement to any act of
genocide, whether the incitement be successful
or not;
3. conspiracy to commit acts of genocide.
Article III
(Punishment of a Particular Off ence) All forms of public propaganda tending
by their systematic and hateful character
to provoke genocide, or tending to make
it appear as a necessary, legitimate or
excusable act shall be punished.
Article IV
(Persons Liable) Those committing genocide shall be
punished, be they rulers, public offi cials
or private individuals
Article V
(Command of the Law and Superior
Orders)
Command of the law or superior orders
shall not justify genocide.
Annex 5
Secretariat Draft E/447 217
Article VI
(Provisions concerning Genocide in
Municipal Criminal Law)
Th e High Contracting Parties shall make
provision in their municipal law for acts
of genocide as defi ned by Articles I, II,
and III, above, and for their eff ective
punishment.
Article VII
(Universal Enforcement of Municipal
Criminal Law)
The High Contracting Parties pledge
themselves to punish any off ender under
this Convention within any territory
under their jurisdiction, irrespective of
the nationality of the offender or of
the place where the off ence has been
committed.
Article VIII
(Extradition) Th e High Contracting Parties declare
that genocide shall not be considered as
a political crime and therefore shall be
grounds for extradition.
The High Contracting Parties pledge
themselves to grant extradition in cases
of genocide.
Article IX
(Trial of Genocide by an
International Court)
The High Contracting Parties pledge
themselves to commit all persons guilty
of genocide under this Convention for
trial to an international court in the
following cases:
1. When they are unwilling to try such
off enders themselves under Article VII
or to grant their extradition under
Article VIII.
2. If the acts of genocide have been committed
by individuals acting as organs
of the State or with the support or
toleration of the State.
Annex 5
218 Secretariat Draft E/447
Article X
(International Court competent to
try Genocide)
Two drafts are submitted for this section:
1st draft: Th e court of criminal jurisdiction
under Article IX shall be the International
Court having jurisdiction in all matters
connected with international crimes.
2nd draft: An international court shall
be set up to try crimes of genocide (vide
Annexes).
Article XI
(Disbanding of Groups or
Organizations Having Participated
in Genocide)
Th e High Contracting Parties pledge themselves
to disband any group or organization
which has participated in any act of
genocide mentioned in Articles I, II, and
III, above.
Article XII
(Action by the United Nations to
Prevent or to Stop Genocide)
Irrespective of any provisions in the foregoing
articles, should the crimes as defi ned
in this Convention be committed in any
part of the world, or should there be
serious reasons for suspecting that such
crimes have been committed, the High
Contracting Parties may call upon the
competent organs of the United Nations
to take measures for the suppression or
prevention of such crimes.
In such case the said Parties shall do everything
in their power to give full eff ect to
the intervention of the United Nations.
Article XIII
(Reparations to Victims of
Genocide)
When genocide is committed in a country
by the government in power or by sections
of the population, and if the government
fails to resist it successfully, the State shall
grant to the survivors of the human group
that is a victim of genocide redress of a
nature and in an amount to be determined
by the United Nations.
Annex 5
Secretariat Draft E/447 219
Article XIV
(Settlement of Disputes on
Interpretation or Application of
the Convention)
Disputes relating to the interpretation or . . .
[sic] application of this Convention shall
be submitted to the International Court of
Justice.
Article XV
(Language – Date of the
Convention)
Th e present Convention, of which the . . . . . . .,
. . . . . . ., . . . . . . , . . . . . . . and . . . . . . . texts are
equally authentic, shall bear the date of. . . . .
Article XVI
(First Draft)
(What States may become Parties to the Convention. Ways to become
Party to it)
1. Th e present Convention shall be open to accession on behalf of any
Member of the United Nations or any non-member State to which an
invitation has been addressed by the Economic and Social Council.
2. Th e instruments of accession shall be transmitted to the Secretary-General
of the United Nations.
(Second Draft)
1. Th e present Convention shall be open until 31. . . . 1948 for signature on
behalf of any Member of the United Nations and of any non-member
State to which an invitation has been addressed by the Economic and
Social Council.
Th e present Convention shall be ratifi ed, and the instruments of ratifi cation
shall be transmitted to the Secretary-General of the United Nations.
2. After 1. . . . 1948 the present Convention may be acceded to on behalf
of any Member of the United Nations and of any non-member State
that has received an invitation as aforesaid.
Instruments of accession shall be transmitted to the Secretary-General of
the United Nations.
Article XVII
(Reservations) No proposition is put forward for the moment.
Annex 5
220 Secretariat Draft E/447
Article XVIII
(Coming into Force) 1. Th e present Convention shall come into
force on the ninetieth day following
the receipt by the Secretary-General of
the United Nations of the accession
(or . . . ratifi cations and accession) of not
less than . . . Contracting Parties.
2. Accessions received after the Convention
has come into force shall become eff ective
as from the ninetieth day following the
date of receipt by the Secretary-General
of the United Nations
Article XIX
(First Draft)
(Duration of the Convention) 1. Th e present Convention shall remain in
eff ect for a period of fi ve years dating
from its entry into force.
2. It shall remain in force for further successive
periods of fi ve years for such Contracting
Parties that have not denounced
it at least six months before the expiration
of the current period.
3. Denunciation shall be eff ected by a written
notifi cation addressed to the Secretary-
General of the United Nations.
(Second Draft)
Th e present Convention may be denounced
by a written notifi cation addressed to the
Secretary-General of the United Nations.
Such notifi cation shall take eff ect one year
after the date of its receipt.
Article XX
(Abrogation of the Convention) Should the number of Members of the
United Nations and non-member States
bound by this Convention become less
than . . . . as a result of denunciations, the
Convention shall cease to have eff ect as from
the date on which the last of these denunciations
shall become operative.
Annex 5
Secretariat Draft E/447 221
Article XXI
(Revision of the Convention) A request for the revision of the present Convention
may be made at any time by any State
which is a party to this Convention by means
of a written notifi cation addressed to the Secretary-
General.
Th e Economic and Social Council shall decide
upon the measures to be taken in respect of
such a request.
Article XXII
(Notifi cations by the Secretary-
General)
Th e Secretary-General of the United Nations
shall notify all Members of the United Nations
and non-member States referred to in Article
XVI of all accessions (or signatures, ratifi cations
and accessions) received in accordance
with Articles XVI and XVIII, of denunciations
received in accordance with Article XIX,
of the abrogation of the Convention eff ected
as provided by Article XX and of requests for
revision of the Convention made in accordance
with Article XXI.
Article XXIII
(Deposit of the Original of the
Convention and Transmission
of Copies to Governments)
1. A copy of the Convention signed by the
President of the General Assembly and the
Secretary-General of the United Nations
shall be deposited in the Archives of the
Secretariat of the United Nations.
2. A certifi ed copy shall be transmitted to all
Members of the United Nations and to nonmember
States mentioned under Article.
Article XXIV
(Registration of the
Convention)
Th e present Convention shall be registered by
the Secretary-General of the United Nations
on the date of its coming into force.
Annex 5
222 Secretariat Draft E/447
PART II
COMMENTS ON THE DRAFT CONVENTION
SECTION I. INTRODUCTION
I. Instructions to the Secretary-General
Th e Economic and Social Council, acting on a resolution of the General
Assembly dated 11 December 1946*, by a resolution dated 28 March
1947 instructed the Secretary-General to undertake studies and to prepare
a draft convention on the international crime of genocide.
In pursuance of the above resolution of the Economic and Social Council,
the Secretary-General asked the Director of the Division of Human Rights
to prepare a draft convention with suitable comments and requested three
experts, Mr. Donnedieu de Vabres, Professor at the Paris Faculty of Law,
His Excellency, Professor Pella, President of the International Association
for Penal Law, and Professor Lemkin, to give him the assistance of their
valuable advice.
Th e experts discussed a preliminary draft of the Convention with Professor
Humphrey, Director of the Division of Human Rights, Professor Giraud,
Chief of the Research Section of the Division of Human Rights, and Mr.
Kliava, representing the Legal Department.
On the basis of the comments of these experts, the Secretary-General
amended and supplemented the preliminary draft which he had submitted
to their consideration; this has now become the draft Convention
reproduced above.
II. How the present study was prepared
Th e Secretary-General felt that he ought to defi ne the notion of genocide
in such a way as not to encroach on other notions which logically are
and should be distinct.
In determining what should be included in the draft, he was guided by the
Assembly resolution of 11 December 1946 concerning genocide, and he
adopted the principles and methods of application established therein.
Annex 5
Secretariat Draft E/447 223
For the rest he considered that the fi rst draft to be submitted to the
competent organs of the United Nations ought, as far as possible, to
embrace all the points likely to be adopted, it being left to these organs
to eliminate what they wished.
In so doing the Secretary-General did not intend to recommend one
political solution rather than another, but wished to off er a basis for full
discussion and bring out all the points deserving of notice.
Th e organs of the United Nations, consisting of representatives of Governments,
will be entirely free to decide the political question raised by the
problem of the prevention and punishment of genocide.
III. Defi nition of the notion of genocide
Genocide is the deliberate destruction of a human group.
Th is literal defi nition must be rigidly adhered to; otherwise there is a
danger of the idea of genocide being expanded indefi nitely to include
the law of war, the right of peoples to self-determination, the protection
of minorities, the respect of human rights, etc.
Absence of a careful defi nition of the notion of genocide would present
two disadvantages.
Firstly, there would be a tendency to include under genocide international
crimes or abuses which, however reprehensible they may be, do not constitute
genocide and cannot be regarded as such by any normal process
of reasoning. International law must be built up on a rational and logical
basis and exclude confusion and arbitrary opinions; each idea must be
properly defi ned and not overlap others.
Secondly, if the notion of genocide were excessively wide, the success of
the convention for the prevention and punishment of what is perhaps the
most odious international crime would be jeopardized. If the convention
on genocide were to include too many accessory reservations and implications
whose signifi cance was not always easy to discern at fi rst sight,
Governments might become suspicious and tend to abstain. A multiplicity
of objectives might lead to the chief target being missed.
Th e law of war, the law of nationality, the protection of minorities, the
general rights and obligations of States, the protection of human rights –
Annex 5
224 Secretariat Draft E/447
these are so many chapters of international law which should not completely,
or even partially, coincide with the question of genocide, even
though genocide may have many points of contact with them.
IV. Th e chief problems involved in the international punishment of genocide
Th e chief problems involved in the international punishment of genocide,
which are governmental rather than technical problems, are the following:
1. What human groups should be protected by the Convention?
Human beings exist variously in racial, national, linguistic, religious and
political groups, and even this list is not exhaustive.
Should the Convention on genocide protect all or only some of these?
Th at is the fi rst general question which will have to be settled.
Th e General Assembly’s resolution speaks of “racial, religious, political and
other groups” and we adopted this formula (see Article I).
2. What is meant by genocide?
Professor Lemkin distinguishes between “physical” genocide (destruction
of individuals), “biological” genocide (prevention of births), and “cultural”
genocide (brutal destruction of the specifi c characteristics of a group).
Should all these three notions be accepted or only the fi rst and second?
Th at is the second general question to be decided.
According to the method we have indicated, we have submitted formulas
covering the three types of genocide so as to convey an exact idea of
what they represent, and thus enable the United Nations organs to reach
a decision. (See Article I).
3. Will the Convention be universal or will its application be strictly limited
to the States parties to the Convention?
Obviously the obligations established by the Convention should apply
only to the States parties to it, for otherwise States parties and States not
parties to the Convention would be on an equal footing.
It is conceivable, however, that States might limit the application of the
Convention strictly to acts committed in the territories of States parties
thereto, or by nationals of such States or, on the contrary, that States
Annex 5
Secretariat Draft E/447 225
parties to the Convention might punish genocide wherever committed
and regardless of the nationality of the criminals.
Th e Secretary-General and the experts were of the opinion that the draft
Convention should adopt the last-mentioned point of view, fi rstly because
that seems to be the intention of the Assembly resolution of 11 December
1946, and secondly, because genocide is by its nature an off ence under
international law; and if this were ignored the Convention would fail in
its object. (See Preamble 1, 2, Articles VII, VIII, XII).
4. Are the acts of genocide punishable under the Convention to be only acts
committed by rulers or statesmen (i.e., persons having strictly political functions
such as Ministers and members of legislative assemblies), or acts committed by
rulers, offi cials properly so called, and private persons without distinction?
Contrary to the opinion expressed by an expert (see below Article V and
comments), the draft Convention has adopted the widest formula, fi rstly
because this is in accordance with the general method followed, and
secondly because the Assembly resolution of 11 December 1946 would
seem to have endorsed that formula.
5. Punishment of genocide by an international tribunal
National courts will be called upon to play a part in the punishment
of genocide, but in the more serious cases it would appear to be highly
desirable that it should be punished by an international tribunal.
Such a tribunal might be an international criminal court with general
jurisdiction; in the absence of such a court, a special court with jurisdiction
limited to genocide would have to be provided for.
Th e question of the establishment of an international criminal court with
general jurisdiction exceeds the scope of the question of genocide. It is not
for us to deal with this question, but the bodies entrusted with the preparation
of the Convention on the punishment of genocide may consider
the question in liaison with the other bodies dealing with international
criminal law and the codifi cation of international law.
6. Conditions of entry into force of the Convention
In view of the fact that the Convention is to be of universal application,
i.e. in some respects even to aff ect States not parties to the Convention,
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226 Secretariat Draft E/447
the question of how many accessions will be needed before the Convention
can come into force is of special importance.
V. How the Convention was drafted
In view both of the fact that the draft Convention is intended to form
a basis of discussion and to facilitate such discussion and that genocide
is a new subject, an eff ort has been made to deal with the questions in
order and to isolate them in the draft. Th e earlier articles give a somewhat
detailed classifi cation and lists of acts which perhaps need not be
maintained in the fi nal text of the Convention. Th e method followed
was that of induction; once agreement has been reached on what is to
be included or excluded, shorter synthetic formulas might be substituted
for the present analytical texts.
* Genocide is a denial of the right of existence of entire human groups, as homicide
is the denial of the right to live of individual human beings; such denial
of the right of existence shocks the conscience of mankind, results in great
losses to humanity in the form of cultural and other contributions represented
by these human groups, and is contrary to moral law and to the spirity [sic]
and aims of the United Nations.
Many instances of such crimes of genocide have occurred when racial, religious,
political and other groups have been destroyed, entirely or in part.
Th e punishment of the crime of genocide is a matter of international
concern.
Th e General Assembly, therefore,
Affi rms that genocide is a crime under international law which the civilized
world condemns, and for the commission of which principals and
accomplices – whether private individuals, public offi cials or statesmen, and
whether the crime is committed on religious, racial, political or any other
grounds – are punishable.
Invites the Member States to enact the necessary legislation for the prevention
and punishment of this crime.
Recommends that international co-operation be organized between States
with a view to facilitating the speedy prevention and punishment of the
crime of genocide; and, to this end,
Requests the Economic and Social Council to undertake the necessary studies,
with a view to drawing up a draft convention on the crime of genocide
to be submitted to the next regular session of the General Assembly.
Annex 5
Secretariat Draft E/447 227
Th e resolution of the Economic and Social Council reads as follows:
Th e Economic and Social Council,
Taking cognizance of the General Assembly Resolution No. 96 of 11
December 1946, instructs the Secretary-General:
(a) to undertake, with the assistance of experts in the fi eld of international
and criminal law, the necessary studies with a view to drawing up a draft
convention in accordance with the resolution of the General Assembly;
and
(b) after consultation with the General Assembly Committee on the
Development and Codifi cation of International Law and if feasible the
Commission on Human Rights, and after reference to all Member Governments
for comments, to submit to the next session of the Economic
and Social Council a draft convention on the crime of genocide.
Annex 5
228 Secretariat Draft E/447
SECTION II. COMMENTS ARTICLE BY ARTICLE
A. BODY OF THE CONVENTION
ARTICLE I
General Defi nitions
(Protected Groups) I. Th e purpose of this Convention is to prevent
the destruction of racial, national, linguistic,
religious or political groups of human
beings.
(Acts qualifi ed as Genocide) II. In this Convention, the word “genocide”
means a criminal act directed against any
one of the aforesaid groups of human beings,
with the purpose of destroying it in whole
or in part, or of preventing its preservation
or development.
Such acts consist of:
1. Causing the death of members of a group
or injuring their health or physical integrity
by:
(a) group massacres or individual executions;
or
(b) subjection to conditions of life which,
by lack of proper housing, clothing,
food, hygiene and medical care, or
excessive work or physical exertion
are likely to result in the debilitation
or death of the individuals; or
(c) mutilations and biological experiments
imposed for other than curative purposes;
or
(d) deprivation of all means of livelihood,
by confi scation of property,
looting, curtailment of work, denial
of housing and of supplies otherwise
available to the other inhabitants of
the territory concerned.
2. Restricting births by:
(a) sterilization and/or compulsory abortion;
or
(b) segregation of the sexes; or
(c) obstacles to marriage.
Annex 5
Secretariat Draft E/447 251
libraries, universities, churches, etc. and compensation to the group for
its collective needs).
* Th e modern view of liability as being based in part on the idea of risk does not exclude
the idea of a wrong.
It can, of course, happen that the idea of risk, involving much more far-reaching liability
than the idea of a wrong, makes it unnecessary to look for a wrong.
But the two ideas are often present together. Where liability is founded on the idea of
risk, the idea of a wrong is not necessarily ignored. Th e wrong is taken into account
in certain cases e.g. as a factor aggravating liability of the persons who in accepting
the risk committed a serious wrong; or, if the person who suff ered the injury himself
committed a serious wrong, as a factor excluding or limiting the amount of damages.
B. FINAL PROVISIONS*
ARTICLE XIV
(Settlement of Disputes on
Interpretation or Application
of the Convention)
Disputes relating to the interpretation or application
of this Convention shall be submitted to
the International Court of Justice.
Comments on this article
1. Diffi culties may arise regarding the operation of a Convention. A
suitable method of settling them is to submit them to a third party who
shall decide between the confl icting parties.
If a dispute arises regarding “the interpretation” of the Convention, i.e.
regarding the meaning of its provisions, or “the application” of the Convention,
i.e. if it is to be ascertained whether one of the parties has faithfully
discharged his obligations, it is normal procedure for the dispute to be
submitted to a judicial authority.
Th e International Court of Justice would appear to be the judicial authority
best qualifi ed to deal with such disputes.
Since the Convention is not intended to regulate the particular relations
between States but to protect an essential interest of the international
community, any dispute is a matter aff ecting all the parties to the Convention.
Hence, such dispute should not be settled by an authority arbitrating
between two or more States exclusively, for then its decision would lack
any claim to be binding on other States.
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252 Secretariat Draft E/447
Th e International Court of Justice, on the contrary, is an organ of the
United Nations established by virtue of the Charter itself; it is a court
whose authority is recognized by all the Members of the United Nations,
and should consequently be given jurisdiction to settle the disputes
concerned.
* Articles XIV–XXIV concerning fi nal arrangements were to be drafted after the experts
had stated their opinion on the Convention as a whole. As the experts had not had
suffi cient time to deal with them, Mr. Pella proposed that the fi nal provisions might
confi dently be entrusted to one of Prof. Giraud’s experience.
ARTICLE XV
(Language – Date of the
Convention)
Th e present Convention, of which the . . . . . . . ,
. . . . . . ., . . . . . , . . . . . . . and . . . . . . . texts are
equally authentic, shall bear the date of . . . . .
Comments on this article
Th e General Assembly, that is to say the Plenary Assembly (and its Committees)
will play the part of a diplomatic Convention summoned to
prepare and adopt a Convention.
When agreement has been reached within the General Assembly, the latter
shall by passing a fi nal resolution adopt the Convention and open it either
for signature or accession by Members of the United Nations.**
* Th is will be the date when the General Assembly passes a resolution adopting the text
of the Convention and opening it either for signature or for accession by the Members
of the United Nations.
** Regarding the question of whether the Convention is to be open to signatures or
accessions, see Article XVI below.
ARTICLE XVI
(First Draft)
(What States may become Parties to the Convention. Ways to become
Party to it)
1. Th e present Convention shall be open to accession on behalf of any
Member of the United Nations or any non-member State to which an
invitation has been addressed by the Economic and Social Council.
Annex 5
Annex 6
Draft Convention on the Crime of Genocide: communications received by the
Secretary-General, Communication received from the United States of America,
A/401 (30 September 1947), reproduced in Abtahi & Webb, The Genocide Convention:
The Travaux Préparatoires
Th e Genocide Convention
Th e Travaux Préparatoires
By
Hirad Abtahi and Philippa Webb
Volume One
2008
Annex 6
E/396/Rev.1 ................................................................................. 58
E/325 ........................................................................................... 60
A/AC.10/41 ................................................................................. 61
A/AC.10/42 ................................................................................. 115
A/AC.10/42/Rev.1 ....................................................................... 124
A/AC.10/42/Add.1 ...................................................................... 133
A/AC.10/15 ................................................................................. 134
A/AC.10/29 ................................................................................. 137
A/AC.10/43 ................................................................................. 143
A/AC.10/44 ................................................................................. 145
A/AC.10/46 ................................................................................. 146
A/AC.10/46/Corr.1 ...................................................................... 148
A/AC.10/SR.28 ............................................................................ 150
A/AC.10/SR.29 ............................................................................ 171
A/AC.10/SR.29/Corr.1 ................................................................ 197
A/AC.10/SR.30 ............................................................................ 198
A/AC.10/55 ................................................................................. 208
Secretariat Draft E/447 ................................................................ 209
E/476 ........................................................................................... 283
E/SR.86 ......................................................................................... 285
E/AC.7/22 ................................................................................... 287
E/AC.7/23 ................................................................................... 288
E/AC.7/SR.15 .............................................................................. 289
E/AC.7/31 ................................................................................... 295
E/AC.7/SR.17 .............................................................................. 297
E/SR.107 ..................................................................................... 300
E/522 ........................................................................................... 301
E/573 ........................................................................................... 302
A/362 ........................................................................................... 331
A/C.6/147 .................................................................................... 363
A/401 ........................................................................................... 366
A/C.6/149 .................................................................................... 385
A/C.6/SR.39 ................................................................................ 387
A/C.6/151 .................................................................................... 391
A/C.6/SR.40 ................................................................................ 392
A/C.6/155 .................................................................................... 394
A/C.6/SR.41 ................................................................................ 395
A/C.6/159 .................................................................................... 400
viii Contents
Annex 6
366 A/401
ANNEX 3a
Draft convention on genocide
Communications received by the Secretary-General
Documents A/401, 27 September 1947
A/401/Add.1,
A/401/Add.2,
A/401/Add.3
[Original text: English]
1. At its fi fth session held on 6 August 1947, the Economic and Social
Council adopted resolution 77(V) relating to the draft convention on
the crime of genocide which had been prepared by the Secretariat. Th e
resolution inter alia called upon the Member Governments, in view
of the urgency of the matter, to submit to the Secretary-General, as
soon as possible, their comments on the draft convention transmitted
to them by the Secretary-General on 7 July 1947.
By the same resolution, the Secretary-General was requested to communicate
to the General Assembly any comments received in time for
transmittal.
2. In compliance with the request made by the Economic and Social
Council, the Secretary General has the honour to transmit to the General
Assembly the following communications received from Member
States:
1. Communication received from India
New Delhi, 27 August 1947
Th e Minister for External Aff airs and Commonwealth Relations presents
his compliments to the Secretary-General of the United Nations and has
the honour to say that the Government of India has no comments to
off er on the draft convention on the crime of genocide received with the
Secretary-General’s note No. 605-8-1-1 EG, dated 7 July 1947.
Annex 6
A/401 367
2. Communication received from haiti
Secretariat of State for Foreign Aff airs
Port-au-Prince 12 September 1947
In reply to your communication No. 605-8-1-1 EG, dated 21 August
1947 last, I have the honour to send you herewith some comments
and suggestions regarding the draft convention on genocide which this
Department feels called upon to submit to the General Assembly of the
United Nations.
Th e idea on which these changes are based is that the principal purpose
of the United Nations is to maintain lasting peace in the world and to be
a centre for harmonizing the actions of nations in the attainment of the
common ends stated in Article 1 of the San Francisco Charter.
If none but the contracting parties are to report genocide committed
by, or in complicity with one of them, the normal development of the
Organization may be seriously prejudiced and the fi nal establishment of
international peace materially endangered.
Th ere is also reason to believe that by granting greater freedom of intervention
to the Secretary-General, who is directly responsible to the General
Assembly, the purposes of the United Nations will more easily be achieved
and the progress of the Organization better ensured.
With particular reference to the reporting of genocide, this Department
therefore supports the opinion of Mr. Pella and Mr. Lemkin as stated on
page 46 of document E/447.1
1 Document E/447 was reproduced as document A/362 and constitutes the text of Annex
3 above.
Comments
Article IX. It is proposed to add the following paragraph to the two at
present contained in this article:
In both cases, in addition to the State on whose territory acts of genocide
have been committed, any one of the High Contracting Parties or the Secretary-
General acting on his own initiative, or in the name of members of
the human group victims of such acts, may report the authors of such acts
to the Economic and Social Council or the Security Council.
Annex 6
368 A/401
Article X. Th e Government of Haiti favours the fi rst draft in order to avoid
the diffi culties inherent in the constitution of provisional tribunals. It also
considers that the International Court of Justice should have jurisdiction
in all matters connected with international crimes or coming within the
scope of international law.
Article XII. Th e following wording is proposed:
Irrespective of any provisions in the fore-going articles, should the crimes
as defi ned in this convention be committed in any part of the world, or
should there be serious reasons for suspecting that such crimes have been
committed, the Contracting Parties or the human groups aff ected may call
upon the competent organs of the United Nations to take measures for the
suppression or prevention of such crimes.
In such case the said Parties shall do everything in their power to give full
eff ect to the intervention of the United Nations.
Article XVI. Th e Government of Haiti favours the second draft as being
more explicit and providing a shorter time limit for the entry into force
of the convention as provided for by article XVIII.
Article XIX. Th e Government of Haiti agrees to the fi rst draft.
Article XX. Th e Government of Haiti considers that the convention on
genocide is essential to the normal development of the world and the
defence of mankind. Accordingly it proposes that the following paragraph
should be added to article XX as it now stands:
In that event the Secretary-General of the United Nations shall submit a
new convention to the vote of the General Assembly at its fi rst subsequent
session. Such new convention shall take into account the reasons given for
each one of the denunciations of the earlier convention.
3. Communication received from the Philippines
Department of Foreign Aff airs
Manila, 9 September 1942
Th e Secretary of Foreign Aff airs of the Philippines presents his compliments
to the Secretary-General of the United Nations and has the honour to
acknowledge the receipt of the Secretariat’s note (document 605-8-1-1/
EG) of 21 August 1947, enclosing copy of the resolution adopted by the
Economic and Social Council on 6 August 1947 on the draft convention
on the crime of genocide, calling upon Member Governments to submit
Annex 6
A/401 369
as soon as possible to the Secretary-General their comments on the draft
convention.
Th e delegation of the Philippines to the forthcoming General Assembly
has been supplied with the materials on the subject and is believed to be
in a position to present the views of its Government on the matter.
4. Communication received from Venezuela
Ministry of External Relations
Caracas, 12 September 1947
Th e Minister for External Relations presents his compliments to the Secretary-
General of the United Nations and has the honour to acknowledge
receipt of note No. 605-8-1-1/EG, dated 21 August last, to which was
attached a copy of the resolution adopted by the Economic and Social
Council relating to the draft convention on the crime of genocide which
was transmitted to the Government with the Secretariat’s communication
number 605-8-1-1/EG dated 7 July 1947.
In accordance with the wishes expressed by the United Nations Secretariat,
the Minister transmits herewith a report containing the comments
of the Government of Venezuela regarding the said draft convention on
the crime of genocide.
Report
Draft convention on the crime of genocide
With the assistance of experts in the fi eld of international and criminal
law and in compliance with the request expressed by the Economic and
Social Council, the United Nations Secretariat prepared a draft convention
on the crime of genocide and two annexes regarding the establishment
of an international court for the punishment of this new form of crime.
Th e Secretariat observes that it is only intended to provide a basis for
discussion and asks for the comments of Governments.
Th e principal ideas of the main draft follow a most noble and generous
international trend, born of the experience of the last war, and deserve
unqualifi ed support; as far as Venezuela is concerned, such fundamental
concepts already constitute a national legal-political heritage, nurtured by
those principles of individual equality, security and liberty which are a
Annex 6
370 A/401
tradition of the political system of the Republic. Indeed, the most recent
National Constitution of 5 July this year (article 46, sub-paragraph (b))
prohibits racial discrimination and generally extends to all inhabitants of
the country, whatever their origin, nationality, race or religion, the same
fundamental individual guarantees based on the widest equality.
Consequently, Venezuela is fully prepared, by its political traditions and
by the liberality of its constitutional principles, to co-operate with other
countries in the suppression of a hateful crime which should be highly
repugnant to civilized nations.
Nevertheless, the impression gained by the jurist from the United Nations
draft convention is that it goes beyond the General Assembly’s resolution
96(I) of 11 December 1946. Th e General Assembly affi rmed that genocide
is a crime under international law, invited the Member States to enact
the necessary legislation for its prevention and punishment, and confi ned
itself to recommending that international co-operation be organized for
this purpose. It therefore appears that the spirit of this resolution was
to ensure that Members should prevent and punish the hateful acts that
constitute genocide and establish a principle of international co-operation
with this object in view, without demanding from Members a grave
sacrifi ce of their sovereignty and a surrender of the criminal jurisdiction
they exercise in their territory.
Th e drafts of the Secretariat, on the other hand, appear to involve a partial
surrender of these traditional principles of national and international law
in favour of the establishment of an international repressive jurisdiction
which may result in serious danger to Members and wound national feelings
that are still over-sensitive. In the course of time, it is probable that
future solutions of this type will be found; but they may be premature
in the present phase of international life and politics and liable to cause
friction, diff erences and disputes between States, which might be more
dangerous to the cause of common peace and harmony than the very
crimes which it is intended to suppress. Paragraph 3 of the preamble, and
articles 7 and 12 of the draft convention are of this nature. Th e whole
system envisaged for the establishment of international justice in regard
to genocide also appears to be imbued with the same spirit, which seems
clearly inconsistent with the principle laid down in paragraph 7 of Article 2
of the United Nations Charter.
Annex 6
A/401 371
Th e application of such extensive co-operation as that proposed by the
instrument in question is also subject to technical diffi culties which appear
diffi cult to overcome. For example, many States, Venezuela among them,
maintain as a fundamental principle the non-extradition of their nationals
under any circumstances and, in return, undertake to try them in their
own territory when the act is punishable under their own law. Such
States could not accept the wording of article 8 under which extradition
must be granted in all cases, nor could they surrender their nationals to
international jurisdiction without violating the basic principles of their
legal system. Even where foreigners are concerned, Venezuela does not
grant extradition when the penalty of death or life-imprisonment may
be imposed on the accused in the country applying for such extradition.
Consequently, the provision contained in article 38 of the Annex does
not appear to provide suffi cient guarantee to a State in such a position
for the safeguarding of its cardinal principles in criminal matters.
Without examining the drafts at length, it appears desirable from every
point of view that they should fi rst be submitted to a deeper and more
extensive study by one of the legal bodies of the United Nations, so that
they may be carefully sifted and made acceptable to the greatest possible
number of States.
Th e Government of Venezuela gives its support in principle but, rather
than the drafts prepared by the United Nations, would prefer a convention
by which Member States undertook to adopt national criminal legislation
ensuring the punishment of genocide and to apply the appropriate penalties
themselves. Only when States do not fulfi l such obligations would
there be cause for claims by other members or by the United Nations.
Th e establishment of international criminal jurisdiction to deal with these
cases seems to be a step that should be reserved for the future, when the
circumstances of international life are more favourable and the spirit
of international co-operation in the legal sphere has, as is to be hoped,
made further progress. If these views on the method of procedure are not
accepted, Venezuela will study her possible fi nal conclusions at greater
length in the same spirit of full co-operation and defence of human
integrity on which her political institutions are based.
Annex 6
372 A/401
5. Communication received from the United States of America
Washington, 30 September 1947
Th e Secretary of State of the United States of America presents his compliments
to the Secretary-General of the United Nations and acknowledges
the receipt of his note, dated 21 August 1947 referring to his earlier note
of 7 July 1947, and has the honour to transmit, as therein requested, the
comments of the Government of the United States on the draft convention
on the prevention and punishment of the international crime of
genocide.
Comments
Preamble. Th e Preamble, as drafted, is objectionable for the reasons that
it is wordy, and that it contains material of a substantive character which
should be treated of in the body of the convention.
Th us, the fi rst sentence purports to defi ne genocide, while articles I and II
of the convention are also devoted to the defi nition of genocide. Attention
is called to the fact that the important matter of “intent” is injected into
the defi nition contained in the preamble by the inclusion of the phrase
“intentional destruction”, which in any event might better read “deliberate
destruction or attempt to destroy.” Th e latter change would bring the
defi nition contained in the preamble more in harmony with the defi nition
contained in the body of the convention. (See article II, dealing with
“attempt to commit genocide”.) It is obviously not intended that groups
must be totally destroyed before the crime of genocide exists.
Another subject which appears to be inappropriately dealt with in the
preamble is that of “jurisdiction”, which might well be considered to be
resolved by the sentence reading: “Th ey pledge themselves to prevent and
to repress such acts wherever they may occur.” (Italics added). Th e jurisdictional
problem should be dealt with in the body of the instrument.
Should the preamble as drafted by the Secretariat be insisted upon, the
United States would also object to the inclusion of the words “by depriving
it of the cultural and other contributions of the group so destroyed”,
language which tends to weaken the sentence in which it appears.
A simply worded preamble is favoured and the following substitute draft
is suggested:
Annex 6
A/401 373
Th e High Contracting Parties declare that genocide constitutes a crime under
international law, which the civilized world condemns, and which the Parties
to this Convention agree to prevent and repress as hereinafter provided.
Th e language of the proposed draft is taken, in part, from the resolution
96(I) of the General Assembly of December 11, 1946.
Article I. 1. Paragraphs I and II of article I, as drafted, overlap each other
and are objectionable for this reason. Th us, each paragraph deals with
both “purpose” and the nature of the “act”. Th e two paragraphs should
be consolidated. A text reading as follows is suggested:
Genocide means any of the following criminal acts directed against a racial,
national, religious, or political group of human beings, for the purpose of
totally or partially destroying such group or of preventing its preservation
or development.
In addition, the words “Such acts consist of:” should then be deleted as
unnecessary, being replaced by the words “any of the following criminal
acts” appearing near the beginning of the text just suggested.
2. Th e inclusion of “linguistic” groups is believed to be unnecessary, since
it is not believed that genocide would be practiced upon them because of
their linguistic, as distinguished from their racial, national or religious,
characteristics. Racial, national and religious groups are covered, and that
should be suffi cient.
3. Considerable question has been raised as to whether “political” groups
should be included in the defi nition. Th e United States is able to agree
to the inclusion of political groups on the understanding that genocide
as to such groups is confi ned to physical destruction.
4. It is important that the words “for the purpose of totally or partially
destroying it or of preventing its preservation or development”, or some
similar wording indicating “purpose” or “intent”, be maintained in the
draft.
5. Th e words “physical violence” should be inserted before the words
“mutilations and biological experiments” in sub-paragraph (c) of paragraph
II(1) of this article, and the words “imposed for other than curative purposes”
should be deleted. Th e inclusion of the words “physical violence”
broadens the defi nition, to take care of other possible forms of physical
violence and the elimination of the words “imposed for other than
Annex 6
374 A/401
curative purposes” also broadens the defi nition. Biological experiments,
however imposed, should be made criminal if they are part of a plan to
destroy one of the groups herein referred to, in whole or in part Th e
word “and” between “mutilations” and “biological experiments” should
be changed to “or”.
6. Th e word “all” in sub-paragraph (d) of paragraph II(1) should be
deleted. Th e inclusion of the word “all” in the phrase reading “deprivation
of all means of livelihood”, would seem unduly to narrow the crime.
7. It is also considered that the word “compulsory”, in paragraph II(2),
now modifying the word “abortion” only, should be made to modify all
crimes listed under paragraph II(2), the initial line of the text thus being
made to read: “Compulsory restriction of births by:”
8. Th e United States is opposed to the inclusion of paragraph 3 of article
I, relating to “destroying the specifi c characteristics of the group” by different
means, except as to subparagraph (a) “forced transfer of children
to another human group.”
Sub-paragraph (b) might be interpreted as embracing forced transfers of
minority groups such as have already been carried out by Members of
the United Nations.
Sub-paragraphs (c), (d) and (e) relate generally to prohibition of the use
of language, systematic destruction of books, and destruction or dispersion
of documents and objects of historical or artistic value. Th e act of
creating the new international crime of genocide is one of extreme gravity,
and the United States feels that it should be confi ned to those barbarous
acts directed against individuals which form the basic concept of public
opinion on this subject. Th e acts provided for in these sub-paragraphs
are acts which should appropriately be dealt with in connection with the
protection of minorities.
Consequently, sub-paragraph (a) of this paragraph should be substituted
for the whole of paragraph 3.
Article II. Article II as drafted is in two parts, namely (I) other crimes
of genocide and (II) other punishable acts. It is considered desirable that
the defi nition of genocide should be treated in Article I and that other
unlawful acts related to but distinguishable from genocide proper be
treated in Article II.
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A/401 375
Th e draft as submitted by the Secretary-General seems to assume that the
acts described as genocide are punishable and unlawful. Th us the initial
line of paragraph II as submitted reads: “Th e following shall likewise be
punishable”. Th e convention should contain a clear statement that the
acts denominated as “genocide” are unlawful and punishable, as is done
in the suggested draft.
Th e preceding suggestions may be eff ectuated by causing article II to
read:
It shall be unlawful and punishable to commit genocide or to wilfully
participate in an act of genocide, or to . . .
Th e above suggested language also places “wilful participation” in the
sentence which declares genocide to be unlawful. Th e other specifi cations
contained in article II, paragraph I, as drafted should properly remain
there. Th ese include “attempts” and “preparatory acts” which appear to
have the same relationship to genocide as “incitement” and “conspiracy”
(contained in paragraph II) in that they are related to but distinguishable
from genocide proper.
However, it is suggested that sub-paragraph (a) of paragraph I(2) as
drafted “studies and research for the purpose of developing the technique
of genocide”, should be deleted for the reason that it is considered that
these acts may be too far removed from what is generally regarded as
the commission of the off ense. Th e conjunction “or” should be inserted
before the word “manufacturing” in sub-paragraph (b); “or” should also
be inserted in place of “and” before the word “distribution” in sub-paragraph
(c). Sub-paragraphs (b) and (c) would become sub-paragraphs (a)
and (b) of paragraph 2:
Article II would then read:
It shall be unlawful and punishable to commit genocide or to wilfully
participate in an act of genocide, or to engage in any:
1. Attempt to commit an act of genocide; or
2. Any of the following preparatory acts:
(a) Setting up of installations, or manufacturing, obtaining, possessing
or supplying of articles or substances, with the knowledge that they
are intended for genocide; or
(b) Issuing instructions or orders, or distributing tasks aimed to promote
genocide; or
Annex 6
376 A/401
3. Direct and public incitement of any person or persons to any act of
genocide, whether the incitement be successful or not, when such incitement
takes place under circumstances which may reasonably result in
the commission of acts of genocide; or
4. Conspiracy to commit an act of genocide.
Article III. Th e United States considers that article III should be deleted.
Under Anglo-American rules of law the right of free speech is not to
be interfered with unless there is a clear and present danger that the
utterance might interfere with a right of others. Th e United States has
proposed under the preceding article that the provision on “incitement”
be qualifi ed to this eff ect. When “propaganda” constitutes a clear and
present danger it takes on the character of “incitement” and is covered
in the preceding article.
Article IV. t is unnecessary here to provide that those committing genocide
“shall be punished”. Article II, as drafted above, makes it “unlawful and
punishable” to commit genocide. Moreover, the present article as submitted
makes only “genocide” punishable, while article II, above makes certain
other acts “unlawful and punishable”. Accordingly, it is suggested that this
article be recast (and renumbered as article III, since it is recommended
that article III of the draft submitted be incorporated into article II) to
read as follows:
Punishment under this Convention shall be meted out to the guilty be they
rulers, public offi cials, private individuals, groups or organizations.
Th e text submitted above has the advantage or making it clear that the
convention is applicable to “groups or organizations”.
Article V. Th is article, as drafted, is also limited to “genocide” and does
not include the other acts specifi ed in article II as “unlawful and punishable”.
Th erefore it is suggested that instead of referring to “genocide”, the
reference be to “the crimes set out in this Convention.”
Th e Government of the United States also desires to incorporate the rule
of the Nürnberg Charter (article 8) which, while providing that superior
orders shall not free a defendant from responsibility, goes on to say that
this “may be considered in mitigation of punishment if the Tribunal
determines that justice so requires.”
Annex 6
A/401 377
Th e article (renumbered article IV) would then read:
Command of the law or superior orders shall be no defense for the crimes
set out in this Convention, but may be considered in mitigation of punishment.
Article VI. Here again it is submitted that some such formula as “acts
prohibited in this Convention” is broader and therefore more desirable
than “genocide as defi ned by articles I, II, and III, above”. It is suggested
that the article (renumbered article V) be rephrased to read:
Th e High Contracting Parties shall make provision in their laws for the eff ective
punishment, as crimes, of the acts prohibited in this Convention, which
laws shall take into account all of the provisions of this Convention and each
such High Contracting Party shall, subject to articles VII and VIII, try and
upon conviction punish off enses committed within its jurisdiction.
Article VII. Th is article contains a broad jurisdictional provision.
Th e United States agrees with the principle set forth in the draft convention,
in article IX that where genocide is committed by or with the
connivance of the State the accused individuals should be tried by an
international court. All other cases would involve acts against the laws of
the State where they are perpetrated.
A second reason for opposing this provision as submitted is that it is
obviously liable to be abused. Th e broad scope of genocide would make
it relatively easy for a State to claim jurisdiction of aliens on this ground
when the real purpose is political retribution.
A third reason for opposing the provision is that it would apparently seek
to establish a rule of law applicable to nationals of States which have not
consented to it, namely, such States as may not ratify the convention.
A suggested text on jurisdiction is contained above under the comment
on the preceding article. It is suggested that the following be added to
this suggested article:
Where such acts were committed outside its jurisdiction, the High Contracting
Party having an off ender within its jurisdiction may, subject to articles
VI, VII and VIII, and with the express consent of the State where the act
was committed, itself try and upon conviction punish such off ender.
Annex 6
378 A/401
Article VIII. Th e United States accepts the principle that the crimes
defi ned in this convention (not merely “genocide”) shall not be deemed
to be political off enses.
Because of the fact that extradition is a technical process, involving as it
does, the safeguarding of human rights and the promotion of the administration
of justice, with respect to which a large network of laws and
treaties have been evolved, it is believed that instead of incorporating an
entire extradition convention on the subject of the crimes covered by this
agreement, it would be preferable to provide that each High Contracting
Party pledges itself to grant extradition in these cases in accordance with
its laws or treaties. Th e United States therefore suggests that this article
(renumbered VI) be recast to read:
Th e High Contracting Parties agree that the crimes defi ned in this Convention
shall not be considered political crimes and shall be ground for
extradition.
Each High Contracting Party pledges itself to grant extradition in such
cases, in accordance with its laws or treaties.
Article IX. It is submitted that the wording of the article, as drafted, is
faulty. Th e person is apparently to be found “guilty” of the crime before
he is delivered up for trial by the international tribunal. It is suggested
that a better wording would be a text reading somewhat as follows
(renumbered article VII):
Each High Contracting Party pledges itself to commit to such permanent
or ad hoc international penal tribunal as is established pursuant to article
VII, persons charged with off enses under this Convention in the following
cases:
1. Where the High Contracting Party is unwilling itself to try such alleged
off enders, be they nationals or non-nationals in conformity with article
V, or to grant their extradition in conformity with article VI.
2. Where the alleged acts have been committed by individuals acting as
organs of the State or with its support or toleration.
Th e provisions of the present Convention shall not prejudice such jurisdiction
as may be conferred upon the permanent international penal
tribunal herein referred to.
Th e fi nal paragraph of this proposed article recognizes that it is desirable
that the jurisdiction of the contemplated permanent international
penal tribunal should not be prejudiced by provisions of the present
Convention.
Annex 6
A/401 379
Article X. Th e provisions contained in the respective appendices with reference
to the subject of conferring on an international tribunal jurisdiction
“in all matters connected with international crimes”, or jurisdiction “to
try crimes of genocide” are extremely detailed. Th e task of drafting such
a convention at least equals that of drafting a convention on genocide.
Th at task should be undertaken as a task separate and apart from the
drafting of a convention on genocide. Th e report of the Committee on the
Progressive Development of International Law and its Codifi cation draws
attention to the possible desirability of an international penal authority.
Moreover, the attachment of such a convention to the instant agreement
might well provoke such controversy as to cause the failure of adoption
of the convention on genocide. For these reasons, the position is taken
that it would be preferable to provide for the establishment of ad hoc
tribunals to be superseded by a permanent international penal tribunal
with appropriate jurisdiction at such time as this may be possible. Th at
this is feasible, is demonstrated by the fact that the Nürnberg Tribunal
was an ad hoc tribunal. While it would probably have been preferable
for the nations to have had a previously established international penal
tribunal to which those cases could have been referred, it is submitted
that the problem of the institution of such a tribunal, competent to try
international crimes generally, is of such a magnitude as to necessitate a
separate project, having the most careful consideration, and inviting the
largest number of States possible to become party thereto.
So far as the establishment of a permanent international penal tribunal
is concerned, consideration should be given in the fi rst instance to the
subject by the proposed international law commission. Th e international
law commission might well give consideration, in this connexion, to the
possible desirability of providing for injunctive relief and also of providing
for recovery of damages on behalf of the victims or survivors of acts
made unlawful by the present convention.
It is therefore suggested that an article be included in the convention,
reading somewhat as follows (article VII):
Th e High Contracting Parties agree to take steps, through negotiation or
otherwise, looking to the establishment of a permanent international penal
tribunal, having jurisdiction to deal with off enses under this Convention.
Pending the establishment of such tribunal, and whenever a majority of
the States party to this Convention agree that the jurisdiction under article
VIII has been or should be invoked, they shall establish by agreement an
ad hoc tribunal to deal with any such case or cases.
Annex 6
380 A/401
Such an ad hoc tribunal shall be provided with the necessary authority to
indict, to try, and to sentence persons or groups who shall be subject to its
jurisdiction, and to summon witnesses and demand production of papers
and documents, and shall be provided with such other authority as may be
needed for the conduct of a fair trial and the punishment of the guilty.
Article XI. Because of the possibility that members of organizations may
use the organizations as tools in their endeavour to commit genocide, and
the organization may thus be used unwittingly in the commission of the
crime it is thought that the draft should read (article IX):
Th e High Contracting Parties pledge themselves to cause the disbandment
of any group or organization which, by the judgment of any domestic or
international tribunal acting pursuant to this Convention, has been found
guilty of participating in any act prohibited by this Convention.
Article XII. Th is article involves the competence of the United Nations to
take measures for the suppression or prevention of crimes failing within
the scope of the convention. It is suggested that a more satisfactory wording
of article XII would be (renumbered article X):
Th e High Contracting Parties, who are also Members of the United Nations,
agree to concert their action as such Members to assure that the United
Nations takes such action as may be appropriate under the Charter for the
prevention and suppression of genocide.
Article XIII. It is suggested that this article is not suffi ciently precise to
be of value. Th e formulation of satisfactory procedures on this point is a
matter of diffi culty since while the International Court of Justice is normally
the proper organ to award damages against a State, any jurisdiction
which it might exercise in this case might result in confl ict with a decision
of the penal tribunal. It is thought that attention should be given to the
problem of damages by the international law commission in formulating
plans for a permanent international penal tribunal. (See comment on
article X.) Until such tribunal is formed it is proposed to vest the ad hoc
tribunal referred to in the comment under article X with jurisdiction to
award damages. Th is could be done by adding the following provision to
the article already proposed at that point (new article VII):
In addition, such an ad hoc tribunal shall also be authorized to assess damages
on behalf of persons found to have sustained losses or injuries as a result
of the violation of this Convention by any High Contracting Party. Prior
to the assessment of any such damages any State alleged to have violated
the Convention, shall be given an opportunity to be heard and to submit
Annex 6
A/401 381
evidence on its behalf. Each High Contracting Party agrees to pay such
damages, and costs, as may be assessed against it as a result of its failure to
comply with the terms of the Convention. Th e ad hoc tribunal shall have
authority to determine the method of distribution and payment of any
amounts so awarded.
Article XIV. Th e words “between any of the High Contracting Parties”
should be inserted after the word “Disputes”. Only States may be parties
to cases before the court.
Because of the jurisdiction which may be conferred upon an international
tribunal, as indicated above, it seems desirable in order to prevent concurrent
or confl icting jurisdiction, to add the following proviso to this article:
“provided that no dispute shall be submitted to the International Court
of Justice involving an issue which has been referred to, and is pending
before or has been passed upon by a tribunal referred to in article VII.”
Article XV. No comment.
Article XVI. Insert the phrase “to accede” after the word “invitation” in
paragraph 1 (fi rst draft), if it is to be adopted.
Th e second draft is preferred. However, the phrase “to sign” should
be inserted after the word “invitation” in paragraph 1, and the words
“deposited with” should be inserted in the place of “transmitted to” in two
instances, that is to say in the second and fourth unnumbered paragraphs.
Whether the Economic and Social Council is the appropriate body to issue
the invitations to sign the convention will need to be determined at the
time of the drafting of the agreement. Possibly “the General Assembly”
should be substituted for “the Economic and Social Council.”
Article XVII. An article on the subject of “reservations” should be
omitted.
Article XVIII. 1. In paragraph 1, delete the words “the accession or . . .”
and insert instead “instruments of ”. Also change “and” to “or”; and delete
“s” in the word “ratifi cations”. It is believed that the convention should
provide for its coming into force upon the deposit of ratifi cations by a
substantial number of States. It is suggested that twenty might be an
appropriate number.
2. In paragraph 2 insert the words “Ratifi cations or” before the word
“Accessions” at the beginning of the paragraph. Also delete the words
Annex 6
382 A/401
“receipt by” and insert instead “their deposit with” before the words “the
Secretary-General of the United Nations” at the close of the paragraph.
Article XIX. Th e fi rst draft is preferred.
Article XX. It is suggested instead of the words “become less than . . .” the
words “become fi fteen or less” be inserted.
Article XXI. Th e following alternative text is submitted:
Upon receipt by the Secretary-General of the United Nations of written
communications from one-fourth of the number of High Contracting
Parties, requesting consideration of the revision of the present convention
and the transmission of the respective requests to the General Assembly,
the Secretary-General shall transmit such communications to the General
Assembly of the United Nations.
Th e General Assembly shall decide upon the steps, if any, to be taken in
respect of such requests.
Article XXII. Th e following text is submitted for insertion in the place
of this article:
Th e Secretary-General of the United Nations shall notify all Members of
the United Nations and non-member States referred to in article XIII of all
signatures, ratifi cations and accessions received in accordance with articles
XIII and XIV, of the date upon which the present Convention has come
into force, of denunciations received in accordance with article XV, of the
abrogation of the Convention eff ected as provided by article XVI, and of
requests for revision of the Convention made in accordance with article
XVII.
Article XXIII. Th e United States suggests the following redraft of this
article renumbered XIX):
1. Th e original of this Convention shall be deposited in the archives of the
United Nations.
2. A certifi ed copy thereof shall be transmitted to all Members of the United
Nations and to non-member States referred to under article XIII.
Article XXIV. No comment.
Note. Th e communication of 18 October 1947 from the Secretary of State
of the United States of America (document A/401/Add. 2) appended a
revised draft convention on genocide incorporating the suggested changes
detailed above.
Annex 6
A/401 383
6. Communication received from France
Ministry of Foreign Aff airs
Paris, 7 October 1947
Th e Secretariat of the United Nations, by letter No. 605-S-1-1/EG of 21
August 1947, requested the French Government to submit such observations
or comments as it might wish to make on the draft convention on
the crime of genocide prepared by the Secretariat.
Th e French Government has the honour to off er the following comments:
1. A country with liberal traditions like France, whose Constitution and
institutions respect the equality of the human races cannot but support
a measure designed to prevent the recurrence of the racial persecutions
whereby the Nazi regime covered Europe with blood, and to make the
commission of all similar crimes impossible.
2. Nevertheless, the French Government, anxious to make the said
convention more eff ective by clarifying it and placing it in its proper
framework, regrets that the question of genocide was not considered
in correlation with the principles affi rmed in the statute and sentences
of the Nürnberg Tribunal, and as a parallel to the conception of crime
against humanity, of which genocide is merely one of the aspects.
It considers that the draft convention submitted by the Secretariat is not
so much a convention as a maximum programme from which future
experts may draw the material for a convention; moreover, this draft is
too much concerned with introducing anti-genocide clauses into the body
of domestic law of each State – clauses which would seem to be of no
more than relative value since this crime can be committed only with the
complicity of Governments.
Th e French Government considers that the defi nition of genocide should
be:
(a) Limited to physical and biological genocide, for to include cultural
genocide invites the risk of political interference in the domestic aff airs
of States, and in respect of questions which, in fact, are connected
with the protection of minorities;
Annex 6
384 A/401
(b) Conditional on some culpable act or omission by the State. According
to the French conception, the punishment of this crime, as such,
should therefore be restricted to rulers, the agents themselves to be
prosecuted and punished by international courts (since the courts of
their own countries take no action), but on a charge of murder and
as common-law criminals.
It does without saying that the French Government is willing to participate
without delay in any discussion likely to lead to the drafting of a convention
based on the foregoing considerations. If it refrains from lengthy
comment on a subject which it feels deserves the most careful attention
of the United Nations it is because its representative on the Committee
on the Progressive Development of International Law and its Codifi cation
has already submitted a memorandum on this subject, published by the
Secretariat on 19 May last as document A/AC.10/29.
Annex 6
Annex 7
UN Economic and Social Council, Ad hoc Committee on Genocide, Summary Record of the
Twentieth Meeting on 26 April 1948, E/AC.25/SR.20 (4 May 1948), reproduced in Abtahi & Webb,
The Genocide Convention: The Travaux Préparatoires (Martinus Nijhoff 2008)
Th e Genocide Convention
Th e Travaux Préparatoires
By
Hirad Abtahi and Philippa Webb
Volume One
2008
Annex 7
Contents xi
E/AC.25/9 ................................................................................... 833
E/AC.25/SR.10 ............................................................................ 834
E/AC.25/SR.10/Corr.1 ................................................................ 845
E/AC.25/SR.10/Corr.2 ................................................................ 846
E/AC.25/SR.10/Corr.3 ................................................................ 847
E/AC.25/SR.11 ............................................................................ 848
E/AC.25/SR.11/Corr.1 ................................................................ 855
E/AC.25/SR.11/Corr.2 ................................................................ 856
E/AC.25/11 ................................................................................. 857
E/AC.25/SR.12 ............................................................................ 860
E/AC.25/SR.12/Corr.1 ................................................................ 869
E/AC.25/SR.13 ............................................................................ 871
E/AC.25/SR.13/Corr.1 ................................................................ 882
E/AC.25/SR.13/Corr.2 ................................................................ 883
E/AC.25/SR.14 ............................................................................ 884
E/AC.25/SR.14/Corr.1 ................................................................ 894
E/AC.25/SR.15 ............................................................................ 895
E/AC.25/SR.16 ............................................................................ 899
E/AC.25/SR.17 ............................................................................ 909
E/AC.25/SR.17/Corr.1 ................................................................ 916
E/AC.25/SR.17/Corr.2 ................................................................ 917
E/AC.25/SR.18 ............................................................................ 918
E/AC.25/SR.18/Corr.2 ................................................................ 931
E/AC.25/SR.18/Corr.3 ................................................................ 932
E/AC.25/SR.19 ............................................................................ 933
E/AC.25/SR.19/Corr.1 ................................................................ 940
E/AC.25/SR.20 ............................................................................ 941
E/AC.25/SR.20/Corr.1 ................................................................ 950
E/AC.25/SR.20/Corr.2 ................................................................ 951
E/AC.25/SR.20/Corr.3 ................................................................ 952
E/AC.25/SR.21 ............................................................................ 953
E/AC.25/SR.21/Corr.1 ................................................................ 960
E/AC.25/SR.22 ............................................................................ 961
E/AC.25/SR.22/Corr.1 ................................................................ 969
E/AC.25/SR.23 ............................................................................ 970
E/AC.25/W.1 ............................................................................... 979
E/AC.25/W.1/Add.1 .................................................................... 985
E/AC.25/W.1/Add.2 .................................................................... 991
E/AC.25/W.1/Add.3 .................................................................... 996
Annex 7
E/AC.25/SR.20 941
United Nations Nations Unies UNRESTRICTED
ECONOMIC
AND SOCIAL
COUNCIL
CONSEIL
ECONOMIQUE
ET SOCIAL
E/AC.25/SR.20
4 May 1948
ORIGINAL: ENGLISH
AD HOC COMMITTEE ON GENOCIDE
SUMMARY RECORD OF THE TWENTIETH MEETING
Lake Success, New York
Monday, 26 April 1948 at 2.00 p.m.
Present:
Chairman: Mr. J. MAKTOS (United States of America)
Vice-Chairman: Mr. Morozov (Union of Soviet Socialist
Republics)
Rapporteur: Mr. Azkoul (Lebanon)
Members: China Mr. Lin Mousheng
France Mr. Ordonneau
Poland Mr. Rudzinski
Venezuela Mr. Perez-Perozo
Secretariat: Mr. E. Schwelb (Assistant Director, Division of
Human Rights)
Mr. E. Giraud (Committee Secretary)
NOTE: Corrections of this summary record provided for in the rules of procedure should
be submitted in writing within the prescribed period to Mr. Delavenay, Director, Offi cial
Records Division, Room CC-119, Lake Success. Corrections should be accompanied by or
incorporated in a letter written on headed notepaper and enclosed in an envelope marked
“Urgent” and bearing the appropriate symbol number.
Annex 7
942 E/AC.25/SR.20
DRAFT ARTICLES FOR INCLUSION IN THE CONVENTION ON
GENOCIDE PROPOSED BY THE DELEGATION OF CHINA ON 16
APRIL 1948 (Document E/AC.25/9) Article III (Document E/AC.25/9)
(Competent Courts)
Th e CHAIRMAN opened the meeting by reading the amendment proposed
by the United States of America to “Article III” of the Chinese
proposal. With the exception of the word “genocide” which had been
replaced by “any of the acts enumerated in Article III”, and of the word
“act” which had been substituted for “crime” the text was the same as
that communicated to the Secretariat on 23 April 1948.
Mr. MOROZOV (Union of Soviet Socialist Republics) proposed that the
text of the fi rst paragraph of the United States proposal should read as
follows: “Th e High Contracting Parties pledge themselves to prosecute
the persons guilty of genocide, as defi ned in the present Convention, as
responsible for criminal off ences, submitting the cases of these crimes
committed within the territory under their jurisdiction for trial by national
courts in accordance with the national jurisdiction of that country”. Th is
stressed the obligation to prosecute, and that the crime should come up
before the domestic court of the country in which it was committed. Th e
Article should be taken as a whole instead of considering separately the
paragraphs relative to domestic and international jurisdiction, as suggested
by the CHAIRMAN.
Th e CHAIRMAN put the Soviet proposal to the vote, which resulted in an
equal division of 3 to 3 with 1 abstention.
As the previous decision accepting reference to international jurisdiction was
sustained by a vote of 4 to 3, the Chinese text continued to be taken as the
basis for discussion with the amendment proposed by the United States of
America.
It was decided by a vote of 5 with 2 abstentions to retain the word “shall”
in the fi rst sentence, as proposed by Mr. RUDZINSKI (Poland), in order to
stress the obligation to punish.
Annex 7
E/AC.25/SR.20 943
Mr. LIN (China) believed that the words “. . . by a competent international
tribunal” suggested that there were several international courts in existence,
while actually no international criminal court had yet been established.
[p. 2-line 26] Th e CHAIRMAN proposed the substitution of the words
“. . . or by such an international tribunal as may be established”.
Mr. RUDZINSKI (Poland), although opposed to the principle of international
jurisdiction, suggested the words “. . . or by such an international
criminal tribunal as may be established”, and made it clear that no obligation
existed under the present Convention to create such a tribunal.
Mr. ORDONNEAU (France) thought the word “may” put doubt on the
establishment of the international court. He proposed, supported by the
CHAIRMAN, that the sentence should read: “. . . by such a competent
international tribunal as will be established in the future”. An explanation
could be embodied in the Report.
Mr. MOROZOV (Union of Soviet Socialist Republics) said he objected
to the establishment of international jurisdiction for this category of
crimes.
Mr. AZKOUL (Lebanon) supported the CHAIRMAN’S proposal to divide
the amendment of the United States of America into two parts.
It was decided to consider the part on domestic tribunals separately from
that on international jurisdiction, for the convenience of those who had
opposed the latter in principle.
Mr. AZKOUL (Lebanon) as Rapporteur, explained that the wording
[p. 3-line 7] “as may be established” had been used to indicate that,
although the majority was in favour of an international court, the details,
such as date of establishment, had not yet been decided.
Mr. PEREZ-PEROZO (Venezuela), objecting to any reference to an
International Court, opposed the whole Article. Th e Convention should
contain only specifi c obligations on the part of States.
It was decided unanimously that the fi rst part of the Article should read:
“Any of the acts enumerated in Article III shall be punished by any competent
tribunal of the State in the territory of which the act is committed . . .”
Annex 7
944 E/AC.25/SR.20
It was decided by a vote of 4 to 3 that the remaining part of [p. 3-lines
18–19] the paragraph should read: “. . . or by such a competent international
tribunal as may be established in the future”.
Th e proposal of Mr. AZKOUL (Lebanon) to reconsider the question of universal
jurisdiction of national courts was rejected by a vote of 4 to 2 with
one abstention.
Th e text of the fi rst paragraph of the amendment of the United States of
America as a whole was approved at fi rst reading by a vote of 4 to 3.
Mr. ORDONNEAU (France) asked the Committee to reverse its previous
decision on the principle of including the reference to international
jurisdiction as embodied in the second paragraph of the amendment of
[p. 3-line 28] the United States of America. Th e question had been decided
prematurely. Th ere should be no ruling at present on the scope of the
International Court’s jurisdiction. He opposed inclusion of the paragraph
in the Convention although he would be in favour of mentioning the
question in the Report.
It was decided by a vote of 6 with one abstention to reconsider the question
of the scope of the international tribunal’s jurisdiction.
Mr. AZKOUL (Lebanon) supported by the representative of China proposed
that the paragraph should be included in the Report together with
the views expressed, and should be deleted from the Convention.
Mr. PEREZ-PEROZO (Venezuela) was against any mention of the Court
in either the Convention or the Report.
It was decided by a vote of 5 to 1 with 1 abstention not to include the
paragraph in the convention, but by a vote of 4 to 3 to include it in the
Report.
Article IV of the Draft Articles Proposed by China (document AC.25/9)
(Action by the United Nations)
Mr. MOROZOV (Union of Soviet Socialist Republics) proposed an
amendment to Article IV of the Chinese draft. It did not disagree in
principle with the Chinese text, but stressed the obligation for the contracting
parties to communicate to the Security Council every act of
Annex 7
E/AC.25/SR.20 945
genocide as well as every case of violation of the convention in order that
the Council could take necessary measures in accordance with Chapter
VI of the Charter.
Th e amendment proposed by the Union of Soviet Socialist Republics was
rejected by a vote of 5 to 2.
Mr. PEREZ-PEROZO (Venezuela) proposed that the text should nevertheless
mention the violation of the Convention as well as actual acts
of genocide.
Mr. RUDZINSKI (Poland) said that a diffi culty would arise if the amendment
were adopted because violation of the Convention might have legal
consequences which were not quite the same as suppression of genocide.
He quoted Article 36 paragraph 2(c) of the Statutes [sic] of the International
Court of Justice.
Th e CHAIRMAN proposed the following wording of the Chinese text:
“Any Signatory to this Convention may bring to the attention of any
competent organ of the United Nations cases of violation of the Convention,
and may call upon such organ to take such action as may be
appropriate. . . ”
Mr. LIN (China) said his wording was broader in scope. Th ose who
were signatories of the Convention could draw attention to acts by nonsignatories.
Mr. RUDZINSKI (Poland) said there were two separate questions
involved: 1. Th e right of Member States to request the United Nations
organs to take action to suppress Genocide; 2. Th e violation of the Convention.
Genocide might be committed in a State who had not become a
Party to the Convention and would not be technically a violation of the
Convention. A clause should be added to the eff ect that cases of violation
of the Convention might be brought to an organ of the United Nations
for appropriate action.
Mr. MOROZOV (Union of Soviet Socialist Republics) proposed that the
words “pledges itself ” should be substituted for “May bring”.
Mr. RUDZINSKI (Poland) proposed the substitution of the words “Any
member of the United Nations” for “Any Signatory. . . ”
Annex 7
946 E/AC.25/SR.20
Mr. ORDONNEAU (France) pointed out that the Convention would
not apply to all members of the United Nations.
Mr. LIN (China) supported by the CHAIRMAN, said non-members
might ratify the Convention.
Mr. MOROZOV (Union of Soviet Socialist Republics) said the question
was twofold: 1. Th e obligation of the member under the Convention to
report acts of genocide; 2. What organ should be informed of the facts
and circumstances.
Th e proposal to substitute a more obligatory term for “may bring” having been
rejected by a vote of 3 to 2 with 2 abstentions and likewise the proposal to
change “signatory” to “Member”, by a vote of 5 to 1 with 1 abstention, the
Chinese text of “Article IV” as amended by the representative of POLAND
and supported by the representative of VENEZUELA, [p. 5-lines 10-14]
was adopted by a vote of 6 with 1 abstention, to read: “Any Signatory to
this Convention may bring to the attention of any competent organ of the
United Nations any cases of violation of the Convention to take such action
as may be appropriate under the Charter for the prevention and suppression
of genocide”. [p. 5-lines 10-14 end]
Th e meeting adjourned at 4.30 p.m. until 4.45 p.m.
THE POLISH PROPOSAL ON EXTRADITION
Mr. LIN (China) supported the Polish proposal.
Th e CHAIRMAN supported the text with the words “a ground for”
substituted for “a cause”, with the substitution of “each High Contracting
Party” for “Th e High Contracting Parties. . . ”, “Th e acts enumerated in
Article III” for “Genocide” in the fi rst paragraph, and “in such cases” for
in cases of genocide” in the second paragraph.
Mr. PEREZ-PEROZO (Venezuela) proposed that “the laws” should be
amended to read “its legislation”.
Mr. RUDZINSKI (Poland) agreed with the proposed amendments.
Th e text of the Polish proposal as amended by the United States of America
and Venezuela was adopted unanimously to read as follows:
Annex 7
E/AC.25/SR.20 947
Th e High Contracting Parties declare that the acts enumerated in Article III
shall not be considered as political crimes and therefore shall be a ground
for extradition.
Each High Contracting Party pledges itself to grant extradition in such
cases in accordance with its legislation and treaties in force.
SECRETARIAT DRAFT CONVENTION (documents E/447 and
E/623)
Article XIV of the Secretariat Draft Convention
(Settlement of disputes concerning the interpretation of the Convention by the
International Court of Justice)
Th e proposal to reconsider a previous decision regarding the banning of organizations
was rejected by a vote of 3 to 2 with 2 abstentions.
Th e CHAIRMAN read the comments by the United States of America on
[p. 5-line 40] page 27 of document E/623. a case should go before the
International Court only after it had been disposed of by the domestic
court. It would be more [p. 6-line 1] consistent to say “. . . passed upon
by a competent national criminal tribunal”. Confl ict of jurisdiction was
undesirable.
Mr. MOROZOV (Union of Soviet Socialist Republics) objected to the
inclusion of Article XIV in the Convention. Matters concerning genocide
should be handled by national courts. Defi ning genocide as something
coming under international jurisdiction would be interfering with the
sovereign rights of states.
Mr. RUDZINSKI (Poland) said that in the Statutes [sic] of the International
Court the “interpretation” of a treaty was a ground for compromise
and for referring to the International Court. It was therefore unnecessary
to have it in the Convention. It might be charged that some tribunal had
not applied the Convention properly, and that might be a ground for
an appeal from a national court to an international court. Th e Article as
it stood might raise some diffi culties concerning the application of the
Convention.
Mr. ORDONNEAU (France) believed there was no danger in saying that
disputes could be submitted to the Court, and there was some advantage
Annex 7
948 E/AC.25/SR.20
in speaking of “interpretation”. It was a question of interpretation only
and did not refl ect on how the provision was being applied.
It was decided by a vote of 5 to 2 to accept the original French text as amended
by the United States of America, with the following wording:
Disputes between any of the High Contracting Parties relating to the interpretation
or application of this Convention shall be submitted to the
International Court of Justice.
It was decided by a vote of 4 to 1 with 1 abstention to add the following
provisio [sic] as proposed by the United States of America:
. . . provided that no dispute shall be submitted to the International Court of
Justice involving an issue which has been referred to, and is pending before
or has been passed upon by a competent international criminal tribunal
PREAMBLE AND ARTICLE I – Soviet and French Amendments.
Mr. ORDONNEAU (France) explained that he did not propose to
substitute his Article for the present Article I, but that the latter should
become Article II.
Mr. MOROZOV (Union of Soviet Socialist Republics) said, there were
many proposals for Article I which were co-related to the preamble.
Unless a decision were fi rst taken on the preamble, he would reserve his
right to discuss Article I at second reading. Th e preamble should state
the motives leading to the creation of the Convention, the signifi cance
of the facts dealt with, decisions on the measures to be taken as a logical
conclusion, It should be the basis of the Articles, and should emphasize
that genocide was a crime against humanity and was bound up with the
“superior-race” theory.
Mr. ORDONNEAU said the Article he proposed would have a certain
infl uence on the future wording of the preamble. It must also be decided
[p. 7-line 5] whether certain juridical questions should be in Articles
II and III. [p. 7-line 5 ends] Genocide was a crime against humanity
which could be perpetrated in time of war or peace. Connection should
be established between laws – between the Convention and the future
work of the International Commission. Th ere was no danger of confusion
with the Nürnberg Charter, as suggested by the Representative of the
Annex 7
E/AC.25/SR.20 949
LEBANON, Th e preamble should contain historical considerations and
the motives which led the High Contracting Parties to sign the Convention.
It should contain no defi nitions or decisions. It could be discussed
at the same time as Article I.
[p. 7-Rudzinski remarks] Mr. RUDZINSKI (Poland) said although
it was true that “the crime of genocide was a crime against humanity”
that was not a suffi cient reason for it to be included in the Convention.
It over-reached the provisions of the General Assembly Resolution No.
180(II). Th e opinion of the International Law Commission had to be
taken into account.
Th e words “one of the gravest crimes against mankind” would avoid confusion.
He proposed, supported by the Representative of FRANCE, the
inclusion of the words “. . . in time of war and in time of peace” in order
to avoid the diffi culty raised by the Nürnberg Charter.
Mr. PEREZ-PEROZO (Venezuela) believed no mistake could be made
if the wording in the General Assembly Resolution No. 96(I) were used,
namely [p. 7-line 25] “genocide is a crime against international law”.
It was decided by a vote of 6 to 1 to amend the wording of the Chinese
preamble to read “Genocide is a grave crime against mankind ”.
It was decided by a vote of 5 to 1 with 1 abstention that genocide [p. 7-line
29] constituted a crime against international law.
Th e meeting rose at 6.30 p.m.
Annex 7
Annex 8
UN Economic and Social Council, Ad hoc Committee on Genocide, Report of the Committee and
Draft Convention drawn up by the Committee, E/794 (24 May 1948), reproduced in Abtahi & Webb,
The Genocide Convention: The Travaux Préparatoires (Martinus Nijhoff 2008)
Th e Genocide Convention
Th e Travaux Préparatoires
By
Hirad Abtahi and Philippa Webb
Volume One
2008
xii Contents
E/AC.25/W.1/Add.4 ................................................................. 1005
E/AC.25/W.2 ............................................................................ 1009
E/AC.25/W.2/Add.1 ................................................................. 1012
E/AC.25/SR.24 ......................................................................... 1013
E/AC.25/SR.24/Corr.1 ............................................................. 1027
E/AC.25/SR.25 ......................................................................... 1028
E/AC.25/SR.25/Corr.1 ............................................................. 1036
E/AC.25/SR.26 ......................................................................... 1037
E/AC.25/SR.26/Corr.1 ............................................................. 1050
E/AC.25/W.3 ............................................................................ 1051
E/AC.25/W.4 ............................................................................ 1054
E/AC.25/W.5 ............................................................................ 1071
E/AC.25/SR.27 ......................................................................... 1088
E/AC.25/SR.28 ......................................................................... 1098
E/AC.25/SR.28/Corr.1 ............................................................. 1109
E/794 ........................................................................................ 1110
E/794/Corr.1 ............................................................................ 1160
Ad Hoc Committee Draft E/AC.25/12 .................................... 1161
E/CN.4/94 ................................................................................ 1167
E/CN.4/136 .............................................................................. 1168
E/800 ........................................................................................ 1169
E/C.2/104 ................................................................................. 1171
E/C.2/105 ................................................................................. 1173
E/AC.27/1 ................................................................................ 1175
E/SR.180 .................................................................................. 1177
E/SR.201 .................................................................................. 1177
E/SR.202 .................................................................................. 1202
E/SR.218 .................................................................................. 1219
E/SR.219 .................................................................................. 1240
E/1049 ...................................................................................... 1252
Volume Two
From the Sixth Committee to the Genocide Convention ........ 1253
Offi cial Records of the Th ird Session of the General Assembly,
Part I, Legal Questions, Sixth Committee ................................ 1255
Sixth Committee, Th ird Session, Table of Contents ................. 1256
Members of the Sixth Committee ............................................ 1272
United Nations Nations Unies UNRESTRICTED
ECONOMIC
AND SOCIAL
COUNCIL
CONSEIL
ECONOMIQUE
ET SOCIAL
E/794
24 May 1948
ENGLISH
ORIGINAL: FRENCH
AD HOC COMMITTEE ON GENOCIDE
(5 April – 10 May 1948)
- – – – – – – – – – – – – – -
REPORT OF THE COMMITTEE AND DRAFT CONVENTION
DRAWN UP BY THE COMMITTEE
(Dr. Karim AZKOUL – Rapporteur)
TABLE OF CONTENTS
REPORT OF THE COMMITTEE
Page
SECTION I – Introduction ................................................... 1112
SECTION II – Observations concerning each Article of the
Draft Convention ................................................................... 1115
Substantive Provisions
PREAMBLE ................................................... 1115
ARTICLE I – Genocide: a crime under
international law ...................... 1120
ARTICLE II – “Physical” and “biological”
genocide ................................... 1122
ARTICLE III – “Cultural” genocide .................. 1126
ARTICLE IV – Punishable acts ......................... 1129
ARTICLE V – Persons liable ............................ 1132
ARTICLE VI – Domestic legislation ................. 1135
ARTICLE VII – Jurisdiction ............................... 1137
ARTICLE VIII – Action of the United Nations .. 1141
ARTICLE IX – Extradition ............................... 1143
ARTICLE X – Settlement of the disputes by
the International Court of
Justice ............................................ 1144
1110 E/794
1140 E/794
REJECTED PROPOSAL
THE PRINCIPLE OF UNIVERSAL REPRESSION
Th e principle of universal repression by a national court in respect to
individuals who had committed genocide abroad was discussed when the
Committee considered the fundamental principles of the Convention.
Th ose in favour of the principle of universal repression held that genocide
would be committed mostly by the State authorities themselves or that
these authorities would have aided and abetted the crime. Obviously in
this case the national courts of that State would not enforce repression
of genocide. Th erefore, whenever the authorities of another State had
occasion to arrest the off enders they should turn them over to their own
Courts. Th e supporters of the principle of universal repression added that,
since genocide was a crime in international law, it was natural to apply
the principle of universal repression. Th ey quoted conventions on the
repression of international off ences such as traffi c in women and children,
counterfeiting currency, etc.
Th e opposite view held that universal repression was against the traditional
principles of international law and that permitting the courts of one
State to punish crimes committed abroad by foreigners was against the
sovereignty of the State. Th ey added, that, as genocide generally implied
the responsibility of the State on the territory of which it was committed,
the principle of universal repression would lead national courts to
judge the acts of foreign governments. Dangerous international tension
might result.
A member of the Committee, while he agreed that the right to prosecute
should not be left exclusively to the courts of the country where genocide
had been committed, declared himself opposed to the principle of universal
repression in the case of genocide. It is a fact, he said, that the Courts
of the various countries of the world do not off er the same guarantee.
Moreover, genocide is distinguished from other crimes under International
Conventions (traffi c in women, traffi c in narcotic drugs, counterfeiting
currency) by the fact that, though in itself it is not a political crime, as
stated in Article IX of the Draft Convention, it nevertheless has or may
have political implications. Th erefore, there is a danger that the principle
of universal repression might lead national courts to exercise a biased and
E/794 1141
arbitrary authority over foreigners. Th is representative therefore proposed
that jurisdiction be given to an international court to which States would
surrender the authors of genocide committed abroad whom they had
arrested and whom they would be unwilling to extradite.
Th e principle of universal repression was rejected by the Committee by
four votes (among which France, the United States of America and the
Union of Soviet Socialist Republics) against two with one abstention. (Eighth
meeting – Tuesday, 13 April 1948).
During the discussion of Article VII the proposal to reverse the foregoing
decision was rejected by four votes against two with one abstention.
(Twentieth meeting – Monday, 26 April 1948).
ARTICLE VIII
(Action of the United Nations) 1. A party to this Convention may call upon
any competent organ of the United Nations
to take such action as may be appropriate
under the Charter for the prevention and
suppression of genocide.
2. A party to this Convention may bring to
the attention of any competent organ of the
United Nations any case of violation of this
Convention.
Observations
Th is Article was discussed at length when the Committee considered
questions of principle, and it was discussed again when the Articles of
the Convention were being drafted.
Th e representative of the Union of Soviet Socialist Republics proposed
the following text:
Th e High Contracting Parties undertake to report to the Security Council
all cases of genocide and all cases of a breach of the obligations imposed by
the Convention so that the necessary measures may be taken in accordance
with Chapter VI of the United Nations Charter.
In this connection there was disagreement on two main points:
1. Should provision be made for the intervention of a specifi c organ of
the United Nations, in this case the Security Council, or should no
organ be mentioned?
1142 E/794
It was urged in favour of naming the Security Council that the commission
of genocide was a grave matter likely to endanger world peace and
therefore one which justifi ed intervention by the Security Council, and
that only the Security Council was capable of taking eff ective action to
remedy the situation, that is to say to stop the commission of genocide.
It was argued against this point of view that, although the Security Council
appeared to be the organ to which governments would most frequently
wish to apply, it was undesirably to rule out the General Assembly, the
Economic and Social Council or the Trusteeship Council. In some cases it
would be of advantage to call on the General Assembly because it directly
expressed the opinion of all Members of the United Nations, and because
its decisions were taken by a majority vote with no risk of the right of
veto preventing a decision.
Th e advocates of naming the Security Council replied that they did not
exclude the possibility of referring the question to the General Assembly
or adopting any other measures which the Security Council may deem
necessary.
2. Should it be made compulsory for parties to the Convention to lay
the matter before the organs of the United Nations or should they be
merely given the right to do so?
It was argued in favour of compulsion that the gravity of genocide justifi
ed compulsory reference to the Security Council which organ would
be free to assess the importance of the cases submitted to it and to take
the necessary steps for the prevention and suppression of genocide. It
was further pointed out that in accordance with the Charter, Members
of the United Nations were already entitled to refer questions to that
Organization and that nothing would be gained by mentioning this right
in Article VIII of the Convention.
It was argued against this view that if a serious case of genocide occurred,
it would certainly be submitted to the United Nations and that it was
unnecessary to make into an obligation a right the exercise of which
should be left to the judgment of governments.
Th e principle of compulsory notifi cation was rejected by three votes to
two with two abstentions. (Twentieth meeting – Monday, 26 April 1948 –
afternoon).
E/794 1143
Having rejected by fi ve votes to two (Twentieth meeting – Monday, 26
April 1948 – afternoon) the text submitted by the representative of the
Union of Soviet Socialist Republics, the Committee had to consider the
text submitted by the representative of China which had been adopted
as the basis of discussion.
Th is text with some amendments was adopted by fi ve votes to one with
one abstention. (Twentieth meeting – Monday, 26 April 1948 – afternoon)
and became the fi rst paragraph of the Article.
A second paragraph, adopted by six votes with one abstention was added.
(Twentieth meeting – Monday, 26 April 1948 – afternoon).
Th e Article as a whole was adopted by fi ve votes to one with one abstention.
Th e representative of the Union of Soviet Socialist Republics made a
declaration with regard to his negative vote.*
ARTICLE IX
(Extradition) 1. Genocide and the other acts enumerated in Article
IV shall not be considered as political crimes and
therefore shall be grounds for extradition.
2. Each party to this Convention pledges itself to
grant extradition in such cases in accordance
with its laws and treaties in force.
Observations
Th is Article was included in the Convention, at the request of the representative
of Poland.
* Declaration of the representative of the Union of Soviet Socialist Republics:
In order really to combat genocide it is essential that the signatories to the Convention
should undertake the obligation to report to the Security Council all cases of
genocide and all cases of a breach of the obligations imposed by the Convention,
so that the necessary measures may be taken in accordance with Chapter VI of the
United Nations Charter. An appeal precisely to the Security Council would be fully
in accordance with the gravity of the question of genocide.
Th e representative of the Union of Soviet Socialist Republics considers that Article
VIII should read as follows in the Convention:
‘Th e High Contracting Parties undertake to report to the Security Council all cases
of genocide and all cases of a breach of the obligations imposed by the Convention
so that the necessary measures may be taken in accordance with Chapter VI of the
United Nations Charter.’
1144 E/794
Th ere was no opposition and it was unanimously adopted by the members
of the Committee.
However, the United States representative made a declaration concerning
this Article.*
ARTICLE X
(Settlement of disputes by
the International Court of
Justice)
Disputes between the High Contracting Parties
relating to the interpretation or application of this
Convention shall be submitted to the International
Court of Justice, provided that no dispute shall be
submitted to the International Court of Justice
involving an issue which has been referred to and
is pending before or has been passed upon by a
competent international criminal tribunal.
Observations
A member of the Committee requested that Article XIV of the Secretariat’s
draft* regarding the settlement of disputes relating to the interpretation
or application of the Convention be re-inserted.
Th e representative of the Union of Soviet Socialist Republics opposed
this proposal, recalling his opposition in principle to the establishing of
an international court which, in his opinion, would be an infringement
of the sovereignty of States and would amount to intervention in the
internal aff airs of the State.
* Declaration of the United States representative:
With respect to the Article on extradition, the representative of the United States
desires to state that until the Congress of the United States shall have enacted the
necessary legislation to implement the Convention, it will not be possible for the
government of the United States to surrender a person accused of a crime not already
extraditable under existing laws. Moreover, the provision in the Constitution of
the United States regarding ex post facto laws would preclude the government from
granting extradition of any person charged with the commission of the off ence prior
to the enactment of legislation defi ning the new crime.
* Th is Article read as follows:
Disputes relating to the interpretation or application of this Convention shall be
submitted to the International Court of Justice.
E/794 1145
Another representative, supporting the conferring of such competence on
the International Court of Justice, pointed out that since the Convention
elsewhere conferred competence on an international criminal tribunal
(Article VII, last sentence), it was desirable to avoid any concurrent or
confl icting jurisdiction.
He therefore proposed, in order to avoid disputes regarding competence,
that the following formula be added to that proposed by the Secretariat:
. . . provided that no dispute shall be submitted to the International Court of
Justice involving an issue which has been referred to and is pending before
or has been passed upon by a competent international tribunal.
Th e fi rst part of the Article conferring competence on the International
Court of Justice was accepted by fi ve votes to two.
Th e second part, including the proviso quoted, was accepted by four votes
to one with two abstentions.
Th e Article as a whole was adopted by four votes to three.
Th e representative of Poland* and the representative of the Union of Soviet
Socialist Republics** made a declaration with regard to their negative vote.
* Declaration of the representative of Poland:
Th e inclusion in the Convention of the principle of an international criminal tribunal
constitutes an obligation of the parties to this Convention, the contents of which
are wholly unknown to them. Th e creation of an international criminal court whose
jurisdiction could only be compulsory and not optional, is contrary to the principles
on which the International Court of Justice and its Statute are based.
** Declaration of the representative of the Union of Soviet Socialist Republics:
Establishment of the system contemplated by Article X must inevitably lead to
intervention by an international court in the trial of cases of genocide which should
be heard by the national courts in accordance with their jurisdiction.
Th e representative of the Union of Soviet Socialist Republics bases his argument
on the fact that the establishment of international jurisdiction for cases of genocide
would constitute intervention in the internal aff airs of States and be a violation of
their sovereignty.
Consequently, in the opinion of the representative of the Union of Soviet Socialist
Republics, Article X should be excluded.
Annex 9
UN General Assembly, Sixth Committee, Third Session, 97th Meeting, A/C.6/SR.97 (9 November 1948),
reproduced in Abtahi & Webb, The Genocide Convention: The Travaux Préparatoires
(Martinus Nijhoff 2008)
Th e Genocide Convention
Th e Travaux Préparatoires
By
Hirad Abtahi and Philippa Webb
Volume One
2008
Annex 9
Contents xiii
Agenda for the Th ird Session .................................................... 1284
A/C.6/SR.61 ............................................................................. 1285
A/C.6/SR.62 ............................................................................. 1285
A/C.6/SR.63 ............................................................................. 1289
A/C.6/SR.64 ............................................................................. 1300
A/C.6/SR.65 ............................................................................. 1310
A/C.6/SR.66 ............................................................................. 1322
A/C.6/SR.67 ............................................................................. 1332
A/C.6/SR.68 ............................................................................. 1342
A/C.6/SR.69 ............................................................................. 1354
A/C.6/SR.71 ............................................................................. 1362
A/C.6/SR.72 ............................................................................. 1367
A/C.6/SR.73 ............................................................................. 1378
A/C.6/SR.74 ............................................................................. 1390
A/C.6/SR.75 ............................................................................. 1405
A/C.6/SR.76 ............................................................................. 1420
A/C.6/SR.77 ............................................................................. 1430
A/C.6/SR.78 ............................................................................. 1443
A/C.6/SR.79 ............................................................................. 1455
A/C.6/SR.80 ............................................................................. 1465
A/C.6/SR.81 ............................................................................. 1473
A/C.6/SR.82 ............................................................................. 1487
A/C.6/SR.83 ............................................................................. 1499
A/C.6/SR.84 ............................................................................. 1519
A/C.6/SR.85 ............................................................................. 1536
A/C.6/SR.86 ............................................................................. 1553
A/C.6/SR.87 ............................................................................. 1572
A/C.6/SR.91 ............................................................................. 1588
A/C.6/SR.92 ............................................................................. 1591
A/C.6/SR.93 ............................................................................. 1609
A/C.6/SR.94 ............................................................................. 1625
A/C.6/SR.95 ............................................................................. 1639
A/C.6/SR.96 ............................................................................. 1654
A/C.6/SR.97 ............................................................................. 1669
A/C.6/SR.98 ............................................................................. 1687
A/C.6/SR.99 ............................................................................. 1702
A/C.6/SR.100 ........................................................................... 1714
A/C.6/SR.101 ........................................................................... 1732
A/C.6/SR.102 ........................................................................... 1745
Annex 9
A/C.6/SR.97 1669
NINETY-SEVENTH MEETING
Held at the Palais de Chaillot, Paris, on Tuesday, 9 November 1948,
at 3.15 p.m.
Chairman: Mr. R.J. Alfaro (Panama).
46. Continuation of the consideration of the draft convention on
genocide [E/794]: report of the Economic and Social Council [A/633]
Article VI (conclusion)
Th e Chairman called upon the Committee to settle the question of the
drafting of article VI. He recalled that the representative of Australia had
proposed (96th meeting) a text to replace the text of the Ad Hoc Committee
as amended by the Soviet Union [A/C.6/254]. Th at text had been
adopted by the Committee (93rd meeting), but its drafting was both
ambiguous and incorrect. Th e representative of the USSR had approved the
statement of the representative of Australia; the Committee was therefore
faced with a simple question of drafting which could easily be settled.
Mr. Morozov (Union of Soviet Socialist Republics) expressed the view
that, without a long discussion, the Committee should be able to adopt
a satisfactory draft. He pointed out that the summary record of the 93rd
meeting clearly indicated that the Chairman had put to the vote “the
Soviet Union amendment to the eff ect that the words ‘to provide criminal
penalties for the authors of such crimes’ should be inserted at the end
of article VI”. Th e Committee had adopted that proposal, which was in
complete accord with the wishes of the USSR delegation. Th e English
text of document A/C.6/254 was incorrect; it did not contain the word
“eff ective” and did not correspond to the text upon which the Committee
had agreed.
Th e delegation of the Soviet Union believed that the Committee should
decide to restore the text of article VI which had been adopted at the
93rd meeting.
Mr. Zourek (Czechoslovakia) observed that the French text of article VI
presented no diffi culty; if the English text were incorrect, the procedure
which had already been followed in similar cases should be adopted,
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namely, the matter should be referred to the drafting committee which,
on the basis of the French text, would ensure the concordance of the
two texts.
Mr. Dignam (Australia) commented that both texts were vague in that
they used the expression “the authors of such crimes” (les auteurs de ces
crimes). Th at was one of the reasons which had led him to propose a
new text.
Th e Chairman thought that the question to be settled was very simple: the
text of article VI, as it appeared in document A/C.6/254, was incorrect;
the Australian delegation had proposed simple drafting amendments which
would make it satisfactory. Th e Chairman proposed that the Australian
text should be put to the vote immediately.
Mr. Kaeckenbeeck (Belgium) recalled that at the 96th meeting he had
stated that the text submitted by Australia changed the meaning of article
VI, which had already been adopted, and that he therefore could not vote
for that text. Th e USSR amendment to the text of the Ad Hoc Committee
provided for the insertion of an additional provision for purposes of
clarifi cation. Th at addition should be included in such a way that the
general meaning of the article remained unchanged.
Th e representative of Belgium stated that certain delegations had drafted a
text which might prove satisfactory to the Committee; it would be advisable
to consider it before voting on the text proposed by the Australian
delegation.
Mr. de Beus (Netherlands) stated that he had no objection to the text
proposed by the Australian delegation. Nevertheless, since that text had
raised diffi culties, some delegations had drafted a new text which seemed
to correspond more closely to the text of the Ad Hoc Committee as
amended by the Soviet Union.
Th e representative of the Netherlands read the new text which was distributed
at the meeting.
Mr. Federspiel (Denmark) noted that the USSR amendment contained
the word “eff ective”; that word was very important and it would
be well to include it in the new text which had been submitted to the
Committee.
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Mr. Dignam (Australia) stated that the new text which had been submitted
was completely acceptable to him and that he would approve it if the
delegation of the Soviet Union also agreed to it.
Mr. Morozov (Union of Soviet Socialist Republics) stressed the fact that
the Committee could decide only on the question of drafting, because the
decision reached at the 93rd meeting on the principle of the Soviet Union
amendment could not be changed except by a two-thirds majority.
Mr. Morozov pointed out that the word “eff ective” appeared in the
USSR amendment and he requested the insertion of that word in the
proposed text.
Th e Chairman put to the vote the text jointly drafted by several delegations,
with the addition of the word “eff ective” [A/C.6/254/Rev.1].
Th e revised text of article VI was adopted by 36 votes to none, with 2
abstentions.
Article VII
Th e Chairman called for discussion of article VII of the draft convention.
He recalled that the Committee had before it various amendments to the
text of the Ad Hoc Committee, submitted by the following delegations:
Uruguay [A/C.6/209]; Union of Soviet Socialist Republics [A/C.6/215/
Rev.1]; Belgium [A/C.6/217]; Iran [A/C.6/218]; United States of America
[A/C.6/235]; United Kingdom [A/C.6/236/Corr.1].
In addition, the Committee had before it two draft resolutions presented
respectively by the delegations of Iran [A/C.6/218] and the Netherlands
[A/C.6/248].
Mr. Kaeckenbeeck (Belgium) recalled that his delegation had also presented
an amendment to the United Kingdom amendment [A/C.6/252];
the Belgian amendment proposed a constructive solution of the entire
problem of an international tribunal.
Mr. Spanien (France) recalled that France had submitted an alternative
draft [A/C.6/211] which the Chairman had stated would be considered
in the course of the discussion. In view of that statement by the
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Chairman, the Committee did not have a formal French amendment
for its consideration. Henceforth, the French delegation would follow
the normal procedure and submit the amendments which it considered
appropriate.
Nevertheless, Mr. Spanien requested that he should be allowed to submit
an amendment [A/C.6/255] whereby the words “or by the international
Criminal Court constitute as follows” would be substituted for the words
“or by a competent international tribunal.”
At the request of Mr. Correa (Ecuador), Mr. Kerno (Assistant Secretary-
General in charge of the Legal Department) stated that, notwithstanding
a number of technical diffi culties, the Secretariat would try to submit a
synopsis of the amendments to article VII at the next meeting of the
Committee.
Mr. Morozov (Union of Soviet Socialist Republics) suggested that the
Committee should consider the amendments by grouping those which had
points in common. Th us several delegations had proposed the deletion of
the fi nal words of the text drafted by the Ad Hoc Committee, namely, “or
by a competent international tribunal”. It would be advisable to consider
those amendments fi rst and to reach a decision on them before examining
the other proposals. If the principle of those amendments were adopted,
there would be no need to consider any other amendments which proposed
that the international tribunal should be mentioned in article VII.
Mr. Maktos (United States of America) supported the suggestion of the
USSR representative. Th e Committee should fi rst reach a decision on the
principle of recourse to an international tribunal; it could perhaps consider
next the drafts proposing the establishment of an international criminal
court or reference of the question to the International Law Commission;
fi nally it could consider the other amendments.
Mr. Kaeckenbeeck (Belgium) concurred in the opinion of the representatives
of the Soviet Union and the United States. He stated that the
amendments of the United Kingdom and Belgium should be considered
together and independently of the other amendments. Th eir fate must
not be prejudiced by the adoption of prior decisions.
Mr. Raafat (Egypt) expressed the view that the method which had
been suggested was acceptable in that it proposed the grouping of the
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amendments; fi rst, however, there should be a general discussion which
would enable all delegations to explain their views on the question as a
whole.
Mr. Abdoh (Iran) supported the suggestion of the representative of the
USSR. He observed that it would be advisable to consider the draft
resolutions submitted by the Netherlands and Iran at the same time as
the deletion of the fi nal words of article VII; certain delegations, indeed,
wished to have those words deleted because the question of the establishment
of an international tribunal had not been settled; that question,
however, was dealt with in the two draft resolutions.
Th e Chairman stated that the discussion would be devoted principally
to the amendments proposing the deletion of the reference to an international
tribunal, but that speakers could speak on other amendments
which had been submitted.
Mr. Raafat (Egypt) was of the opinion that the amendments before the
Committee could be placed in three categories.
In the fi rst place, there were the amendments which restricted competence
to national courts; some of those amendments recognized only the
competence of the courts of the country in whose territory the act of
genocide had been committed, while others advocated recognition of the
competence of courts other than those of the country in whose territory
the act had been committed, if extradition had not been requested.
In the second place, there were the amendments which restricted competence
to an international tribunal, even if acts of genocide were committed
by private individuals. Th at principle was diffi cult to accept, at least for
the time being.
Between those two extremes, there were composite proposals for the recognition
of the competence both of national courts and of an international
tribunal. In that case two principal questions arose. What would be the
competent international tribunal? How could a matter be referred from
a national court to an international tribunal? To settle the fi rst question,
certain delegations proposed the establishment of an international criminal
court, while others contemplated the establishment of a criminal division
of the International Court of Justice. With regard to the second question,
the United States proposed that the international tribunal should
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be competent when national courts failed to act; the United Kingdom
considered that national courts should be competent to deal with crimes
committed by private individuals and the international tribunal with
crimes committed by Governments.
Having considered the various categories of amendments in general, the
representative of Egypt stated that his delegation would support the United
Kingdom amendment.
Mr. de Beus (Netherlands) considered that the manner in which the punishment
of genocide was to be organized was one of the most important
questions which arose in connexion with the whole problem; unless that
punishment was assured, the convention would have no real value.
Th e diffi culty was that, when genocide was committed, encouraged or
tolerated by a State, the national tribunals would obviously not be in a
position to punish the guilty. How could that defi ciency be remedied?
Th e Netherlands representative thought it necessary to distinguish between
the responsibility of a State which violated a convention and the criminal
responsibility of individuals who committed a crime. With respect
to the fi rst, there existed competent international tribunals, such as the
International Court of Justice and international arbitration courts; with
respect to the second, there was no international court with jurisdiction
over individuals. Th e International Court of Justice, under Article 34 of
its Statute, was not competent to try individuals. It could be seized only
of disputes between States brought before it by a State; even in that case,
its jurisdiction did not extend to the criminal fi eld because the concept
of the criminal responsibility of States was not yet generally accepted and
because, even if it were accepted, there existed no supranational authority
capable of enforcing judgments rendered against States.
Mr. de Beus further remarked that three methods had been proposed to
ensure the punishment of genocide committed or tolerated by a State.
Th e fi rst method was to leave such punishment entirely to national courts
which would, of course, be competent to try only individuals who had
committed the crime. Th e United Kingdom amendment approached
the problem from the point of view of the responsibility of States, suggesting
that the matter should be referred to the International Court of
Justice; that suggestion fully took into account existing conditions. But
the amendment was defective in two respects. Since individuals, under
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A/C.6/SR.97 1675
the terms of that amendment, were to be tried by national courts, offi cials
were ensured impunity, it being improbable that they would be prosecuted
by the Government on whose orders they had acted; moreover, no provision
was made in the amendment for cases where the penalties imposed
by national courts upon those who were guilty of the crime were not
suffi ciently severe. Th e Uruguayan amendment made provision for the
latter type of case by considering undue lenience on the part of national
courts as a violation of the convention which could be brought before
the International Court of Justice by any signatory State. Th e Netherlands
delegation approved that amendment in principle, while reserving its
position with respect to the procedure proposed.
Th e second method was to declare that only an international tribunal was
competent to punish acts of genocide. Th at was the method advocated
in the French amendment. In theory, that method was the most eff ective
of all; in practice, however, it was off set by the fact that no international
criminal court yet existed and by the diffi culty of establishing one in the
near future.
Th e third method, which fell between those two extremes, was that
adopted in the draft of the Ad Hoc Committee; it included both kinds
of punishment, by national and international tribunals. Th at system was
usefully elaborated in the United States amendment, under which the
jurisdiction of the international tribunal would be subject to a fi nding
that national tribunals had failed in their duty.
Th e Netherlands delegation took the following position in regard to the
various problems raised: it felt that the criminal responsibility of individuals
and the international responsibility of States should be dealt with
separately, either in two diff erent articles or in two distinct paragraphs in
article VII; it supported the United Kingdom amendment, provided it
were inserted either in article VIII or in article X and supplemented by
provisions for the punishment of individuals whose acts had been committed
with the participation or tolerance of the State; it was in favour of
a provision such as that contained in the draft of the Ad Hoc Committee
concerning the punishment of individuals, together with a reference to an
international tribunal; it was greatly interested in the proposal contained in
the French amendment to set up a criminal division of the International
Court of Justice. However, as the question of setting up an international
criminal court required very thorough study, the Netherlands delegation
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urged the Committee to adopt its draft resolution requesting the International
Law Commission to undertake that study.
Mr. Inglés (Philippines) recalled having already stressed (95th meeting)
that, if the convention were not to remain a dead letter, it was necessary
to establish an international criminal court to ensure the punishment on
an international level of those who might escape with impunity either
because their national courts were not competent to deal with them
owing to particular constitutional laws, or because they received favourable
treatment thanks to the connivance or indiff erence of the national
criminal courts.
He fully agreed with the point of view of the French delegation, namely,
that genocide was a collective crime of such proportions that it could
rarely be committed except with the participation or the tolerance of
the State; it would be paradoxical to leave to that same State the duty of
punishing the guilty.
It was true that no international criminal court as yet existed. Having
duly noted that fact, the truly realistic approach would be to try to remedy
that omission and thus to act in conformity with resolutions 96(I)
and 180(II) of the General Assembly, which had declared genocide to
be an international crime entailing not only national but international
responsibility.
Th e Philippine delegation supported the principle enunciated in article
VII of the draft convention, namely, that international as well as national
tribunals should be competent to deal with genocide. It would vote against
any amendment rejecting that principle and would support all amendments
or resolutions which would develop it further.
Mr. Manini y Ríos (Uruguay) stated that the convention could not be
eff ective unless it provided for an international tribunal to remedy any
failure on the part of national courts to take punitive measures. It was
in that spirit that his delegation had proposed its amendment off ering
a solution of the problem; it was, however, ready to accept any other
satisfactory formula based on the same principle.
Th ere was no country, apparently, which did not already provide, in its
penal code, for the punishment of acts constituting genocide. Th e con-
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A/C.6/SR.97 1677
vention would therefore be devoid of meaning if, terming genocide an
international crime, it did not organize its punishment on an international
level. Th e fact that there did not yet exist an international criminal court
capable of ensuring such punishment did not justify even the temporary
abandonment of the principle of such punishment; that principle should
be proclaimed immediately. It would, of course, take some time to carry
it out in practice, as a text had to be prepared defi ning the competence
and the procedure of the future tribunal, but the International Law Commission
should be able to do that within a reasonable period.
During the interval between the entry into force of the convention and the
adoption of texts laying down the procedure of the international tribunal,
article VII would serve as a warning to all those who contemplated committing
genocide; they would know that they would not evade punishment,
even though their trial might have to wait until the international
machinery for that purpose had been set up.
Mr. Bammate (Afghanistan) would vote in favour of the amendments
proposing the deletion of the fi nal phrase of article VII, concerning the
competence of the international tribunal; the wording was unsatisfactory,
since it gave no indication as to the nature of the tribunal, its composition
or its procedure. At the same time he would in no way oppose the
principle of international punishment.
In theory, the setting up of an international tribunal seemed justifi ed by
the fact that genocide could not eff ectively be punished by national courts
if it were committed – as was generally the case – with the connivance
of the State. Moreover, it would be logical that an international crime
should be punished on an international level.
But logic and theory must be subordinated to practical considerations.
Punishment on an international level could not in fact be achieved, at
least not in the most serious cases, since it was impossible to see how a
sentence pronounced by an international tribunal could be carried out. In
those circumstances the prestige of the tribunal would soon be lowered and
the very principle that genocide must be punished would be discredited.
Moreover, many States appeared to be so jealous of the prerogatives of
their national sovereignty that they might refuse to ratify the convention
if it infringed too seriously upon those prerogatives.
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Th e representative of Afghanistan summed up his argument by stating
that article VII placed the Committee on the horns of a dilemma. On
the one hand, it could confi ne itself to providing for punishment on a
national level; that principle was apparently recognized by all States, but
such punishment would often prove ineff ective or inadequate. On the
other hand, it could adopt the principle of punishment on an international
level; but however desirable that method might be, its complete
implementation appeared impossible to achieve in practice in the current
condition of international law; furthermore, it might prevent many States
from ratifying the convention.
It was therefore necessary to fi nd a compromise solution. Agreement
appeared possible fi rst, on the principle of punishment on a national level
and, secondly, on the deletion of the fi nal words of article VII, which
lacked clarity. In addition, punishment should be carried to the international
level, either by the adoption of a system of universal punishment,
or by the conferment of jurisdiction upon an international tribunal, but
in a manner which would not infringe upon the sovereignty of States and
which would make possible, in practice, the execution of the sentences
imposed.
Th e Afghanistan delegation would study with interest any suggestions to
that eff ect.
Sardar Bahadur Khan (Pakistan) was of the opinion that the amendments
aimed at deleting from article VII all reference to an international tribunal
were not acceptable, as they would completely destroy the eff ectiveness
of the convention.
National courts were already competent to punish all the acts covered
by articles II and IV of the draft convention; there was no need for the
convention to confi rm that fact. Moreover, as genocide was almost always
committed with the complicity or the tolerance of a State, it was obvious
that the courts in that State would not only be unable to prosecute the
rulers, they would not even be able to prosecute those who had committed
the crime.
It was for that reason that the Pakistan delegation considered article VII
of the draft convention of such importance. Provision for punishment
on an international level was the only eff ective measure which would
make it possible to punish the guilty and also, consequently, to prevent
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the crime. Th e Pakistan representative pointed out that the preamble to
the draft convention imposed on States the duty to prevent and punish
genocide. Th at duty could not be fulfi lled unless there existed an international
criminal court which alone would be in a position to ensure the
punishment of rulers.
Th e Pakistan delegation would have preferred that the international
tribunal alone should have jurisdiction over all cases of genocide, to the
exclusion of the competence of all national courts in that respect; however,
taking into account the opinions of other delegations, it was willing to
recognize that national courts should also have jurisdiction, as laid down
in article VII of the draft convention. It suggested, nevertheless, that rulers
should be subject only to the international tribunal and that the States
Parties to the convention should always be able to appeal to that tribunal
from the judgements pronounced by national courts against offi cials and
private individuals.
Mr. Messina (Dominican Republic) recalled that his country, by concluding
arbitration treaties and by signing the declarations provided for in
Article 36 of the Statute of the International Court of Justice, had more
than once demonstrated its conviction that recourse to an international
tribunal was the best means of maintaining peace.
Nevertheless, the Constitution of the Dominican Republic recognized the
jurisdiction of national tribunals alone with respect to crimes committed
in the territory of the Republic, and was consequently opposed to the very
principle of sharing that jurisdiction with an international tribunal.
Moreover, the delegation of the Dominican Republic feared that sentences
pronounced by an international tribunal dealing with all the acts covered
by articles II and IV of the draft convention might, in a number of cases,
call forth or increase international tension.
For these reasons, it would vote in favour of the deletion of the fi nal
words of article VII.
Mr. Abdoh (Iran) explained that the amendment presented by his delegation
provided, fi rst, for the competence of national tribunals, secondly,
for subsidiary universal punishment, and, fi nally, for the possibility of
setting up an international criminal court after the International Law
Commission had studied the modalities.
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Until that criminal court came into being, the International Court of
Justice might carry out, in the fi eld of prevention and punishment of
genocide, the part assigned to it in the United Kingdom and Belgian
amendments. Measures taken by the International Court of Justice for
the prevention of genocide could be even more eff ective than those of a
criminal court, for fanatics of the type that usually committed genocide
were not afraid of penalties under criminal law. Yet surely it was even more
important to prevent genocide than to punish those guilty of it.
Th e Iranian delegation proposed the deletion of the fi nal words of article
VII only for practical reasons; it was impossible to enunciate the principle
of the competence of an international tribunal without at the same time
defi ning its nature, its procedure and its relation to national courts, all
of which would require long preliminary study.
It should be remembered, moreover, that States were jealous of their
national sovereignty and that they had readily recognized the jurisdiction
of the International Court of Justice only because recourse to that
Court was optional. It would probably be far more diffi cult to set up an
international criminal court, because its jurisdiction would have to be
compulsory.
Mr. Dihigo (Cuba) recalled that his delegation had always been in favour
of an international tribunal to punish genocide. It was of the opinion that,
when the responsibility of States was involved, punishment of genocide
on the national level could only be inadequate or ineff ective.
Th e Ad Hoc Committee on Genocide had recognized the principle of an
international tribunal in article VII of its draft, but it had made no provision
regarding the composition of that tribunal, its procedure and the
laws it was to enforce. In those circumstances, the fi nal words of article
VII had no practical value and should be deleted. Th e deletion would
not, however, rule out the possibility of an agreement on the principle of
setting up an international criminal court, or on the principle of recourse
to the International Court of Justice in cases where the responsibility of
States was involved. Th e proposal of the Netherlands delegation to ask
the International Law Commission to study the question of setting up
an international tribunal, and the United Kingdom proposal to confer on
the International Court of Justice competence to deal with certain types
of cases, were both interesting and deserved attention.
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In conclusion, the Cuban delegation would vote for the deletion of the
fi nal words of article VII, although it supported the principle of international
jurisdiction.
Mr. Tarazi (Syria) emphasized that his delegation favoured the international
punishment of genocide but considered that jurisdiction should not
be conferred upon the International Court of Justice because, according
to its Statute, the Court could not pass judgment in the fi eld of criminal
law and, in other fi elds, its jurisdiction extended only over States, not
over individuals. If it were desired that the competence of the International
Court of Justice in respect to genocide should be recognized in the
convention, the Statute of the Court would fi rst have to be amended; but
that question was not on the Committee’s agenda.
Moreover, a special convention would be necessary to establish an international
criminal court; in those circumstances, the Syrian delegation
thought the Committee could declare itself in favour of the principle of
the creation of an international court and leave the elaboration of a plan
for the establishment of such a court to the appropriate organs of the
United Nations.
Mr. Demesmin (Haiti) pointed out that, since it has been recognized, in
article I of the convention, that genocide was a crime under international
law, it was unthinkable to leave the punishment of that crime to national
courts alone.
Th e constitutional provisions of certain countries or the principle of the
national sovereignty of States could not be adduced as an argument against
the principle of the international punishment of genocide. Th e United
Nations had, indeed, been established so that each State might realize
its responsibilities and duties as a member of the community of nations.
Member States would fail in their duty if, by taking an uncompromising
stand on the provisions of their Constitutions or the principle of their
national sovereignty, they opposed the adoption of measures which proved
to be necessary in the general interest.
Nor could opposition to the establishment of an international criminal
court be justifi ed by the fact that such a court did not yet exist. If the
text of article VII were maintained as it stood, the ratifi cation of the
convention would entail for the signatories the obligation to provide
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for the establishment of such a court. Once the convention had been
signed, the method of functioning of the court would be considered and
its competence and powers decided. If, on the contrary, reference to an
international tribunal in article VII were deleted, it would be necessary to
amend the convention when a tribunal of that kind was established.
Mr. Demesmin stressed the fact that reference to an international tribunal
in article VII would not fail to have a salutary eff ect on authorities
who wished to commit acts of genocide and who, in the absence of such
reference, would be ensured impunity.
Mr. Abdoh (Iran) pointed out to the representative of Haiti that there
were other crimes, considered as crimes under international law, which
were not, nevertheless, subject to international repression. He gave as
examples, counterfeiting currency, the white slave traffi c, and the circulation
of obscene publications, which all came under the national jurisdiction
of the States in whose territory the criminals were arrested. It might be
concluded that genocide, like all those crimes, should be the object of
subsidiary universal repression. Mr. Abdoh reserved the right to return to
that question when the amendment which his delegation had proposed
to article VII came up for discussion.
Mr. Iksel (Turkey) said his delegation was in favour of any amendment
to delete the last words of article VII.
His delegation was of the opinion that national courts should be relied
upon to try individuals who committed acts of genocide. Th e Turkish
delegation realized that such punishment might be inadequate in cases
where the crime was committed or tolerated by States or Governments, and
it was disposed to consider the possibility of recognizing the jurisdiction
of an international tribunal over such cases alone; but in cases where the
crimes were committed by individuals, it insisted that national tribunals
alone should have jurisdiction.
Mr. Petren (Sweden) associated himself with the views expressed by the
Netherlands representative and favoured the retention of the last words
of article VII.
He noted, however, an omission in the text of article VII. As it was drafted,
that article did not seem to take into account cases where the national of
a State committed an act of genocide on the territory of another State and
Annex 9
A/C.6/SR.97 1683
then returned to his own country. Under the provisions of article IX of
the convention, the State of which the culprit was a citizen would not be
obliged to extradite him. To guard against that possibility, the provisions
of article VII of the convention should be supplemented.
Mr. Fitzmaurice (United Kingdom) noted that numerous delegations
recognized how illusory was the idea of the punishment of genocide on
a national level; but he could not understand why those same delegations
had nevertheless opposed (96th meeting) the amendment submitted by his
delegation to article V of the convention. In the opinion of the United
Kingdom delegation, article VII was completely useless. With regard to
national jurisdiction, there were already other provisions in the convention,
such as the preamble, article V and article VI, which affi rmed the
obligation of States Parties to the convention to punish genocide on
the national level; and as to international jurisdiction, the mention of a
competent international tribunal – which could only be an international
criminal court – was useless since such a tribunal did not exist. Even if
it did exist, it would be of as little use as national courts, for it was to be
anticipated that culprits would not be handed over to it and that unless
armed force were used it would be impossible to bring the perpetrators
of an act of genocide to trial by that court.
For that reason it was necessary to adopt a realistic approach and to have
recourse, as the delegations of Belgium and the United Kingdom proposed,
to the only existing international court in a position to enact measures
capable of putting a stop to the criminal acts concerned and of awarding
compensation for the damage caused to victims.
Th e delegation of the United Kingdom opposed the adoption of article
VII of the convention and in particular of the last words of that article.
Mr. Amado (Brazil) recalled that even before the convention on genocide,
certain crimes had been termed crimes under international law, either
by conventions – as for example, in the case of the slave trade, traffi c in
women and children and traffi c in narcotic drugs – or by custom, as in the
case of piracy. For all those crimes, universal suppression was recognized
and accepted. But, generally speaking, States still sought to reserve the
right of judging their nationals, and it was unfortunately evident that the
system of extradition still met with a variety of obstacles as a result of the
anxiety of States to preserve their national sovereignty.
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Th e organization of the international suppression of crimes developed
pari passu with the organization of international co-operation and solidarity.
Both were in a period of uncertainty. Th e time had not yet come to
establish an international criminal court for, notwithstanding the contrary
opinion of eminent jurists, there did not exist any international criminal
law properly speaking; there existed, in each State, provisions of domestic
law and it was by extension that it had become possible to speak of
international criminal law. Th e doctrine of universal suppression was a
very old one which had been formulated in the seventeenth century by
Hugo Grotius, rightly called the father of international law; but it was
far from having received general application in practice, for in practice
the national jurisdiction of criminal law still obtained.
Th e last words of article VII expressed merely a wish, an aspiration, and
the delegation of Brazil thought they should be deleted in order that the
convention might remain within the confi nes of reality.
Mr. Medeiros (Bolivia) stated that his Government was in favour of
an international court to deal not only with cases of genocide, but with
every sphere of international law. It had given proof of that by signing the
declaration provided for in Article 36 of the Statute of the International
Court of Justice.
Since genocide had been defi ned as a crime under international law, it
should logically be punished on an international level. It must, however,
be admitted that the arguments advanced against the adoption of the last
words of article VII had a certain weight.
Th e question of the repression of genocide was a fi eld in which progress
must be made slowly, without omitting to make use of the means available.
If those considerations were borne in mind, the United Kingdom
proposal was of undeniable utility, because it provided for recourse to
the International Court of Justice in cases of genocide in which the
responsibility of the State or Government could be established. It was
inadequate, however, for it omitted cases of genocide committed by individuals
and it should be supplemented in that respect. But as a result of
the Committee’s vote on the amendment to article V submitted by the
United Kingdom delegation, that proposal did not seem to have much
chance of being adopted; in those circumstances it was advisable to
consider the proposal of the Netherlands delegation, which would retain
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A/C.6/SR.97 1685
article VII in its present form, but recommended that the International
Law Commission be requested to consider whether it was desirable and
possible to establish an international judiciary body with jurisdiction over
perpetrators of genocide.
Th e delegation of Bolivia would vote in favour of the United Kingdom
proposal and, if that proposal were rejected, in favour of that of the
Netherlands delegation.
Mr. Arancibia Lazo (Chile) recalled that the principle of the national
sovereignty of States had been considered for centuries as absolute, but,
as a result of the evolution of the world and the evolution of ideas, it
had had to make way for another principle, that of international solidarity
in view of universal harmony. Th at principle had given birth to the
United Nations, whose Members, by signing the Charter, had assumed
the obligation, or at least the moral obligation, to renounce part of their
national sovereignty when the general interest so required.
Th e representative of Chile admitted that, in its present form, article VII
had little practical signifi cance, especially with regard to the competent
international tribunal which was mentioned. It was obvious that in the
absence of special provisions on the procedure to be followed and the law
to be applied, such an international tribunal could not dispense justice.
But that article contained the expression of a hope which must be realized
sooner or later and, on that account, it deserved to be retained. Since
its provisions were not incompatible with those of the Netherlands and
United Kingdom proposals, there was no reason why both those proposals
and article VII should not be adopted.
For its part, the Chilean delegation would vote in favour of the retention
of article VII.
Mr. Sundaram (India) explained the reasons for which his delegation
opposed the adoption of article VII which conferred jurisdiction, in the
fi eld of genocide, both upon the existing national courts and to a nonexistent
international tribunal.
Th e Government of India had already indicated that it could not subscribe
to the establishment of an international criminal court without
being in possession of details, in particular as to the composition of the
court, the procedure to be followed before it, and the law to be applied.
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1686 A/C.6/SR.97
Mr. Sundaram wished to make it clear that his delegation did not reject a
priori the jurisdiction of an international court in cases an act of genocide
was committed or tolerated by Governments; he observed, however, that,
if two kinds of courts for the repression of the crime of genocide were
envisaged, the cases when over which national courts would have jurisdiction
and the cases which would have to be submitted to the international
court must be clearly determined in advance.
Th e Indian delegation would vote in favour of the Belgian, USSR and
Iranian delegations’ proposal to delete the last words of article VII. It
pointed out that if reference to a competent international tribunal were
omitted, the provisions of article VII were useless, since States Parties to
the convention had already, under the terms of the preamble and of article
VI, assumed the obligation to suppress genocide on the national level.
Mr. Spanien (France) drew the Committee’s attention to the danger there
would be, once the principle of the responsibility of rulers had been admitted,
in relying on national courts for the repression of genocide, a crime
which was generally committed only by States or with their complicity.
Article VII of the draft convention provided that in case of default on the
part of national organs, the punishment of genocide should be ensured
by an international body. Th e French delegation, considering the form
of article VII unsatisfactory, proposed that the words: “or by a competent
international tribunal” should be replaced by the words: “or by the
international criminal court constituted as follows”, which would serve
as an introduction to articles 4 to 10 of the French draft convention
[A/C.6/211].
It was impossible to provide, as the Belgian and United Kingdom delegation
proposed, that the International Court of Justice should pronounce
judgment in cases of genocide committed by States or Government, for
that Court had no jurisdiction whatsoever in the criminal fi eld.
Genocide was committed only through the criminal intervention of public
authorities; that was what distinguished it from murder pure and simple.
Th e purpose of the convention which the Committee was drawing up
was not to punish individual murders, but to ensure the prevention and
punishment of crimes committed by rulers. To that end it was necessary
to have recourse to eff ective means, namely, to an international criminal
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A/C.6/SR.98 1687
court. As no such court yet existed, the necessary measures should be
taken to establish one.
Th e French delegation was of the opinion that it was preferable for States
to have their national sovereignty limited by law rather than by combined
interests or by war. It appealed to members of the Committee not to
confi ne themselves to words but to take appropriate action to ensure the
eff ective punishment of genocide.
Th e Chairman read out the list of speakers and, with the Committee’s
assent, declared the list closed. He announced that voting would take
place fi rst on the amendments for the deletion of the last words of article
VII, and explained that that vote would in no way prejudge the fate of
the various amendments submitted. He suggested that the delegations of
Belgium, the United States, France, the United Kingdom and Uruguay,
which had all proposed amendments on the question of the international
court, should meet unoffi cially to try and draft a single text.
Th e meeting rose at 6.5 p.m. [sic]
NINETY-EIGHTH MEETING
Held at the Palais de Chaillot, Paris, on Wednesday, 10 November 1948,
at 10.30 a.m.
Chairman: Prince Wan Waithayakon (Siam).
47. Continuation of the consideration of the draft convention on
genocide [E/794]: report of the Economic and Social Council [A/633]
Article VII (continued )
Th e Chairman announced that the discussion would be continued on
the amendments submitted by the Union of Soviet Socialist Republics
[A/C.6/215/Rev.1], Belgium [A/C.6/217] and Iran [A/C.6/218], which
proposed the deletion of the words “or by a competent international
tribunal” from article VII.
Mr. Correa (Ecuador) said that the question of the general scope of
the convention was involved in article VII. Th e convention might either
Annex 9
Annex 10
UN General Assembly, Sixth Committee, Third Session,103rd Meeting, A/C.6/SR.103
(12 November 1948), reproduced in Abtahi & Webb, The Genocide Convention:
The Travaux Préparatoires (Martinus Nijhoff 2008)
Th e Genocide Convention
Th e Travaux Préparatoires
By
Hirad Abtahi and Philippa Webb
Volume One
2008
Annex 10
xiv Contents
A/C.6/SR.103 ........................................................................... 1759
A/C.6/SR.104 ........................................................................... 1775
A/C.6/SR.105 ........................................................................... 1786
A/C.6/SR.106 ........................................................................... 1802
A/C.6/SR.107 ........................................................................... 1812
A/C.6/SR.108 ........................................................................... 1824
A/C.6/SR.109 ........................................................................... 1835
A/C.6/SR.110 ........................................................................... 1849
A/C.6/SR.128 ........................................................................... 1864
A/C.6/SR.129 ........................................................................... 1871
A/C.6/SR.130 ........................................................................... 1882
A/C.6/SR.131 ........................................................................... 1898
A/C.6/SR.132 ........................................................................... 1910
A/C.6/SR.133 ........................................................................... 1922
A/C.6/SR.134 ........................................................................... 1937
Table of Contents: Annexes ...................................................... 1943
A/C.6/206 ................................................................................. 1962
A/C.6/209 ................................................................................. 1963
A/C.6/211 ................................................................................. 1964
A/C.6/213 ................................................................................. 1967
A/C.6/214 ................................................................................. 1968
A/C.6/215/Rev.1 ....................................................................... 1968
A/C.6/217 ................................................................................. 1972
A/C.6/218 ................................................................................. 1975
A/C.6/221 ................................................................................. 1976
A/C.6/222 ................................................................................. 1977
A/C.6/223 & Corr.1 ................................................................. 1977
A/C.6/224 & Corr.1 ................................................................. 1978
A/C.6/225 ................................................................................. 1979
A/C.6/227 ................................................................................. 1983
A/C.6/229 ................................................................................. 1983
A/C.6/230 & Corr.1 ................................................................. 1984
A/C.6/231 ................................................................................. 1984
A/C.6/232/Rev.1 ....................................................................... 1985
A/C.6/235 ................................................................................. 1985
A/C.6/236 & Corr.1 ................................................................. 1986
A/C.6/238 ................................................................................. 1988
A/C.6/241 ................................................................................. 1991
Annex 10
A/C.6/SR.103 1759
HUNDRED AND THIRD MEETING
Held at the Palais de Chaillot, Paris, on Friday, 12 November 1948,
at 3.15 p.m.
Chairman: Mr. R.J. Alfaro (Panama).
52. Continuation of the consideration of the draft convention on
genocide [E/794 ]: report of the Economic and Social Council [A/633]
Article X
Th e Chairman opened the discussion on article X. He recalled that
the following delegations had submitted amendments to the text of the
Ad Hoc Committee: Union of Soviet Socialist Republics [A/C.6/215/Rev.1];
Belgium [A/C.6/217 ]; United Kingdom [A/C.6/236 ]; Belgium and United
Kingdom [A/C.6/258]. Two amendments had been proposed by India
[A/C.6/260]1 and Haiti [A/C.6/263]2 to the joint amendment submitted
by Belgium and the United Kingdom.
1 Amendment submitted by India: For the words “at the request of any of the High
Contracting Parties” substitute the words “at the request of any of the parties to the
dispute.”
2 Amendment submitted by Haiti: Add at the end of the text “or of any victims of the
crime of genocide (groups or individuals)”.
Mr. Fitzmaurice (United Kingdom) stated that he had withdrawn the
original United Kingdom amendment [A/C.6/236 ], substituting for it
the joint amendment [A/C.6/258]. In the absence of the representative of
Belgium, it was impossible to say defi nitely whether the original Belgian
amendment would be withdrawn, but Mr. Fitzmaurice thought that it
had also been withdrawn in favour of the joint text.
Mr. Dignam (Australia) observed that the decision to delete article VIII
of the convention (101st meeting) prejudged the fate of any provision
based on the principle contained in that article, namely, action by organs
of the United Nations. Article X dealt with the settlement of disputes
by the International Court of Justice, which was one of the competent
organs of the United Nations covered by article VIII. Strictly speaking,
therefore, the Committee should not discuss article X. If it did so it
Annex 10
1760 A/C.6/SR.103
should be for the defi nite purpose of rectifying the mistake of having
deleted article VIII.
Th e Australian delegation considered that a clause should be inserted in
article X concerning organs of the United Nations other than the International
Court of Justice, which could take useful action in suppressing
genocide.
Th e Chairman stated that all ideas expressed during the discussions should
be studied; and, moreover, that the rejection of a text did not imply that
its substance could not be incorporated in another article. Nevertheless,
the Committee must confi ne itself to the consideration of the text of
article X proposed by the Ad Hoc Committee, and of the amendments
submitted thereto in accordance with the rules of procedure.
Mr. Sundaram (India) thought that it would be better not to regard
the original Belgian amendment [A/C.6/217 ] as withdrawn. Th e joint
amendment submitted by Belgium and the United Kingdom constituted
an addition to the matters likely to give rise to disputes which would be
submitted to the International Court of Justice; that addition might lead
certain delegations to reject the joint amendment. If the original Belgian
amendment were withdrawn, the Committee would be obliged to adopt
the text of the Ad Hoc Committee, whereas the Belgian text was preferable.
Consequently, if the Belgian delegation withdrew its amendment, the
Indian representative would reintroduce it on its own behalf in accordance
with rule 73 of the rules of procedure.
After a discussion on the question as to whether the Committee was still
seized of the Belgian amendment, in the course of which the Chairman,
Mr. Kerno (Assistant Secretary-General in charge of the Legal
Department), Mr. Maktos (United States of America), Mr. Spiropoulos
(Greece) and Mr. Raafat (Egypt) expressed their views, Mr. Abdoh (Iran)
stated that if the original Belgian amendment [A/C.6/217 ] had not been
withdrawn by its author, the Committee should examine it and put it
to the vote; if, however, it had been withdrawn, the delegation of Iran
would reintroduce it on its own behalf in conformity with rule 73 of the
rules of procedure.
Th e Chairman took note of the fact that the Belgian amendment had
become an amendment submitted by Iran.
Annex 10
A/C.6/SR.103 1761
In reply to a question by Mr. de Beus (Netherlands), the Chairman
stated that the second Belgian amendment [A/C.6/252] had been replaced
by the joint amendment of the Belgian and United Kingdom delegations.
He called upon the Committee to proceed to the general discussion of
that joint amendment [A/C.6/258].
Mr. Maktos (United States of America) remarked that the joint amendment
had been intended to replace the original amendments submitted
by Belgium and the United Kingdom; it was, in principle, an improvement
on those texts; it would therefore be better fi rst to decide on the
Belgian amendment.
Th e representative of the United States accordingly made a formal motion
that that amendment should be discussed fi rst.
Th e Chairman pointed out that the joint amendment was furthest
removed in substance from the text of the Ad Hoc Committee; consequently,
in conformity with rule 119 of the rules of procedure, the Committee
should express its views on that amendment fi rst.
Th e Chairman ruled that the point of order raised by the representative
of the United States was not in order and that the joint amendment must
be examined fi rst.
Mr. Maktos (United States of America) appealed against the Chairman’s
ruling.
Th e Chairman put the appeal to the vote.
Th e Chairman’s decision was upheld by 22, votes to 2, with 8 abstentions.
Mr. Fitzmaurice (United Kingdom) reviewed the history of the joint
amendment of Belgium and the United Kingdom. He recalled that during
the debate on article VII (97th meeting), the United Kingdom delegation
had submitted an amendment [A/C.6/236/Corr.1]; an amendment to that
amendment had been proposed by Belgium [A/C.6/252]. Th e debate had
clearly shown the Committee’s desire to confi ne the provisions of article
VII to the responsibility of individuals. Th e United Kingdom and Belgium
had therefore withdrawn their amendments to article VII and had
worked out jointly a new text as an amendment to article X, which dealt
with the jurisdiction of the International Court of Justice and which was
thus a suitable point at which to insert the idea the two delegations had
Annex 10
1762 A/C.6/SR.103
in mind. Th e joint amendment [A/C.6/258] represented an attempt to
combine the provisions of article X as it stood with the essential features
of the Belgian and United Kingdom amendments to article VII, namely,
the responsibility of States and an international court empowered to try
them.
Th e delegations of Belgium and the United Kingdom had always maintained
that the convention would be incomplete if no mention were made
of the responsibility of States for the acts enumerated in articles II and
IV. At the 102nd meeting, during the discussion on the competence of
national courts and the reference of disputes to the Security Council, the
representative of the United Kingdom had been impressed by the fact that
all speakers had recognized that the responsibility of the State was almost
always involved in all acts of genocide; the Committee, therefore, could
not reject a text mentioning the responsibility of the State.
Mr. Fitzmaurice recalled the French representative’s statement, at the
101st meeting, to the eff ect that it was incomprehensible that Belgium
and the United Kingdom should oppose the joint amendment which the
USSR and France had off ered to article VIII, since the former delegations
were off ering a similar amendment to article X. Th ere was a very clear
diff erence, however, between the French and USSR text and the Belgian
and United Kingdom text: the former had contemplated provisions of
an optional nature wherein, moreover, rights were conferred which were
already laid down in Articles 34, 35, 36 and 37 of the Charter; whereas
the joint Belgian and United Kingdom amendment proposed that reference
to the International Court of Justice should be obligatory. Th e Court’s
jurisdiction was compulsory only for a limited number of States which, in
accordance with Article 36 of the Statute of the Court, had recognized it
by an offi cial declaration. Th e joint amendment to article X was intended
to impose upon all States parties to the convention the obligation to refer
all disputes relating to cases of genocide to the International Court.
Mr. Chaumont (France) said he was in favour of the joint Belgian and
United Kingdom amendment which corresponded in spirit to the views
expressed from the very beginning by the French delegation with regards to
the need for and importance of international punishment of genocide.
It would certainly have been preferable to provide for such punishment
on the direct basis of criminal law instead of confi ning its scope to States
Annex 10
A/C.6/SR.103 1763
alone on the basis of civil law; but, inadequate as it was, the joint amendment
was preferable to the absence of any text confi rming competence
to an international court.
In reply to a remark by the representative of the United Kingdom, Mr.
Chaumont recognized that the joint amendment made the competence
of the International Court of Justice compulsory, whereas the amendment
to article VIII, proposed jointly by France, Iran and the USSR, provided
for optional reference only. Nevertheless, as the representative of Poland
had indicated (101st meeting), the option in question led, in practice,
to an obligation.
Mr. Chaumont felt that it would in any case be useful to reiterate, in
the convention, a general provision of the Charter, such as Article 36, so
as to make it applicable to the special case of genocide. While regretting
the fact that the problem of the international punishment of genocide
should be dealt with solely on the level of disputes between States, he
hoped that the interpretation given on that matter by the International
Court of Justice would interpret its functions in such a way as to enable
it to extend its competence to all cases of genocide.
Moreover, the representative of France was in no way opposed to the
principle of the international responsibility of States as long as it was a
matter of civil, and not criminal, responsibility.
With regard to the amendments to the joint amendment, Mr. Chaumont
could accept the one presented by India, which was merely a drafting
matter, but not the text proposed by Haiti, which was incompatible with
Article 34 of the Statute of the International Court of Justice.
Mr. Raafat (Egypt) shared the view of the representative of France concerning
the Indian and Haitian amendments, but he could not agree with
him with respect to the joint Belgian and United Kingdom amendment.
Th e latter introduced two changes in article X of the Ad Hoc Committee’s
draft.
Th e fi rst consisted in introducing into the article the notion of the civil
responsibility of States which, in the absence of a general organization for
international punishment, would be approved by the Egyptian delegation.
Th e second modifi cation, however, which involved the deletion of the
last section of article X of the draft, beginning with the words “provided
Annex 10
1764 A/C.6/SR.103
that”, was less satisfactory. Th at deletion doubtless refl ected the desire to
omit from that provision, as well as from article VII, any reference to a
competent international court. It left, however, a lacuna, the serious disadvantages
of which would be felt on the establishment of the international
criminal court referred to in the draft resolution which the Committee
had adopted at its 99th meeting on the initiative of the Netherlands and
Iran, requesting the International Law Commission to study the problem.
Th e last part of that article merely endorsed the rule that “the civil court
must await decision by the criminal court”, which should also be applied
in the fi eld of international law.
It was therefore essential that that part of article X should be retained;
for that reason the delegation of Egypt would abstain from voting on the
joint amendment.
Mr. Chaumont (France) explained that he too opposed the deletion of that
sentence, which he had not mentioned in his preceding remarks, thinking
that it would not be discussed until the Committee came to the Belgian
amendment [A/C.6/217 ], which had been reintroduced by Iran.
Mr. Guerreiro (Brazil) observed that there were no serious objections
to the joint amendment.
Article VIII was unnecessary, as it merely proclaimed the rights already
laid down in the United Nations Charter. Article X, on the other hand,
introduced into the draft convention the compulsory jurisdiction of the
International Court of Justice. Th at compulsory jurisdiction, in accordance
with Article 36 of the Statute of the Court, applied only to the States
which had signed a special declaration to that eff ect. Article X would thus
supplement the provisions of the Statute in that respect.
Th e delegation of Brazil was prepared to accept the joint amendment,
provided the second part of article X of the draft remained deleted, so
that it would conform to article VII, from which mention of a competent
international tribunal had been deleted. If the International Criminal
Court, whose establishment was under consideration, were to be created,
it would be an easy matter to revise the convention so as to adapt it to
the new situation.
Referring to the amendments to the joint amendment, Mr. Guerreiro
said that the Indian amendment related merely to a drafting point; the
Annex 10
A/C.6/SR.103 1765
amendment presented by Haiti, however, was contrary to the Statute of
the International Court of Justice; consequently, in view of the express
provisions in the Statute as to how and by whom the Court could be
seized of a matter, he suggested to the authors of the joint amendment
and to the Committee that they should simply delete the last phrase of
the amendment, which would in no way alter its meaning.
Mr. Spiropoulos (Greece) approved, in general, the principle of the
joint amendment. He wondered, however, whether there was a diff erence
between the application and the fulfi lment of a convention and whether,
therefore, it was necessary to retain both words in the text.
Furthermore, the notion of the responsibility of a State did not seem to
him very clear. What was meant was obviously not international responsibility
for violation of the convention, which was already implicit in
article I of the draft convention. Th e French delegation thought that the
amendment related to the civil responsibility of the State; and that idea
seemed to be confi rmed by the original Belgian text [A/C.6/252] which
referred to reparation for damage caused. If, however, that interpretation
were accepted, the result would be that in a number of cases the State
responsible for genocide would have to indemnify its own nationals. But
in international law the real holder of a right was the State and not private
persons. Th e State would thus be indemnifying itself.
In spite of the criticisms he had just made, Mr. Spiropoulos would vote
for the joint amendment.
Mr. Pratt de María (Uruguay), while regretting that the principle of the
establishment of an international criminal court had not been retained in
the convention, favoured the joint amendment; he was, however, opposed
to the Indian and Haitian amendments.
Mr. Demesmin (Haiti) approved the principle of the joint amendment,
to which he had himself proposed an addition. He would explain later
the reasons for his proposal.
Mr. Ingles (Philippines) recalled that during the discussion of article V
(95th meeting), he had already stated that his delegation was opposed to
any responsibility on the part of the State for acts of genocide, because
under Philippine law a legal entity could have no criminal responsibility
distinct from that of the various individuals of which it was composed.
Annex 10
1766 A/C.6/SR.103
True, the joint amendment did not specifi cally state that criminal responsibility
was involved, but from the very nature of the convention, the
purpose of which was the punishment of genocide, that idea could be
inferred.
In those circumstances, and since the clause might make it diffi cult for
certain countries to ratify the convention, Mr. Ingles asked the Belgian
and United Kingdom delegations to withdraw their amendment, for when
they, as well as other delegations, had pointed out that their Governments
could not accept the convention if it involved the responsibility of their
monarchs, the Committee had borne their remarks in mind and had
excluded from article V rulers who were not constitutionally responsible
(95th meeting). If it had been agreed, at their request, that a constitutional
monarch could not be guilty of genocide, why should they not agree that
a State could not be responsible for that crime either?
Moreover, it might be said that that question had already been settled
when the Committee opposed introducing the idea of the responsibility
of the State into article V (96th meeting).
Th e Philippine representative could not accept the idea that a whole State
should be stigmatized for acts for which only its rulers or its offi cials were
responsible. When it was maintained that genocide was always committed
with the complicity or tolerance of a State, what was meant was the rulers
and the offi cials, namely, the persons who composed the State and not
the State itself, the responsibility of which was inconceivable.
For those reasons, the Philippine delegation would vote against the amendment,
and, if it were adopted, would have to reserve its position in regard
to the draft convention as a whole.
Mr. Tarazi (Syria) thought the rule that a decision by a civil court must
await a decision by a criminal court, which the Egyptian representative
wished to see retained in article X, would not have to be applied in that
matter. Th e criminal court would try individuals – rulers, offi cials or
private persons – while the International Court of Justice would try only
States. Th e civil and criminal courts would therefore not be prosecuting
the same persons and no confl ict of jurisdiction would arise.
Th e Syrian delegation would therefore vote for the joint amendment as
well as for the Haitian amendment, which it did not consider in any way
Annex 10
A/C.6/SR.103 1767
contrary to the Statute of the Court. Th ere was in fact no reason why the
signatory States should not, by means of a convention, also allow groups
and individuals to bring before the International Court of Justice cases
of genocide of which they had been the victims.
Mr. Abdoh (Iran) supported the joint amendment submitted by Belgium
and the United Kingdom. His delegation had always hoped that the
declaration provided for in Article 36 of the Statute of the International
Court of Justice would be signed by as many States as possible, so that
the jurisdiction of the Court would become obligatory for almost all
members of the United Nations. Th at very result, namely, an extension of
the compulsory jurisdiction of the Court, would be attained in the special
matter of genocide by the adoption of the joint amendment.
Th e objections raised to the terms of the amendment were not serious.
It was certain, for example, that the Court would have no diffi culty in
deciding in each specifi c case to whom the reparation for damage caused
should be made.
On the other hand, the Haitian amendment could not be retained, for it
would result in a modifi cation of the Statute of the Court in disregard of
the rules governing such action which were laid down in the Charter.
Th e representative of Iran associated himself with the suggestion of the
Brazilian delegation, namely, that the last phrase of the joint amendment
should be deleted. Th us a discussion on the Indian amendment would
be avoided.
He further thought that the second part of the text of article X of the
draft convention could not be restored after the joint amendment, for if
the reference to a competent international tribunal had been deleted from
article VII, there was all the more reason for its deletion from article X.
When the international criminal court was set up, that text, as well as other
provisions, could then be changed to conform to the new situation.
Mr. Maúrtua (Peru) thought it would be premature to include in the
convention so loosely defi ned an idea as the responsibility of the State
in regard to genocide. As the Greek representative had pointed out, if
civil responsibility were meant, that would raise numerous problems,
particularly the problem of the benefi ciary of the indemnity. In those
circumstances, before a decision was taken on such a delicate point,
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1768 A/C.6/SR.103
it should be referred to specialists for study, and Governments should
be given an opportunity to formulate their views after having taken all
necessary advice.
Th e part of the joint amendment which could be retained was that relating
to the jurisdiction of the International Court of Justice in respect to the
interpretation of the convention by means of advisory opinions.
Speaking of the Haitian amendment, the representative of Peru held
that it was incompatible with the Statute of the Court and should not
be adopted.
Mr. Lachs (Poland) shared the doubts of the Greek, Philippine and Peruvian
delegations about the principle of the responsibility of States.
Moreover, he objected to the joint amendment, on the one hand because
it provided for the application of measures which in no way constituted
direct means of international punishment of a crime such as genocide,
and on the other hand because it conferred on the International Court
of Justice competence in a fi eld in which other United Nations organs
could play a more eff ective role. Th e result of that amendment, as drafted,
would be in eff ect that the Court had virtually exclusive jurisdiction in
that fi eld. It would be easy for a State guilty of genocide to invoke article
X, thus amended, to contest the competence of the Security Council or
of the General Assembly by alleging that the question raised constituted a
dispute within the meaning of that article, and that it could be examined
only by the Court.
It would be more logical to do what the Committee had done in connexion
with article VIII (101st meeting) and to let the provisions of the
Charter itself operate freely, especially Article 96, according to which it
was for the General Assembly and the Security Council to refer to the
International Court of Justice if they deemed it necessary. In that case,
there would be no more reason to retain article X than article VIII, since
it would merely repeat provisions already contained in the Charter.
In conclusion, the Polish representative considered the joint amendment
submitted by Belgium and the United Kingdom amendment to be dangerous
because it would confi ne international punishment to measures
of uncertain effi cacy and would constitute an obstacle to more forceful
action by the Security Council and the General Assembly.
Annex 10
A/C.6/SR.103 1769
Mr. de Beus (Netherlands) observed that the objections made to the
United Kingdom amendment during the discussion of article VII (97th
meeting) were no longer valid. Th at amendment had been restored to
its proper place, which was article X, and in its new form it envisaged
also the indirect responsibility of the State resulting from the leniency of
national courts towards individuals or groups guilty of genocide.
Referring to the argument advanced by the Philippine delegation, the
Netherlands representative hoped that the delegation would not adhere
to its position. Th at position could perhaps be maintained if the criminal
responsibility of the State were involved, but it seemed exaggerated if civil
responsibility were meant and if it resulted in a rejection of the jurisdiction
of the International Court of Justice even in connexion with the violation
of the convention by a State. Th at was tantamount to denying the
Court any jurisdiction whatsoever; yet such an argument was advanced
by a country which had at fi rst proposed that the United Nations should
be in the nature of a world Gouvernment [sic].
Furthermore, Mr. de Beus did not fi nd the arguments of the Polish representative
very convincing. Th e competence of the International Court of
Justice in no way ruled out that of the other organs of the United Nations.
If the joint amendment were adopted, article X of the draft convention
would constitute a direct application of Article 33 of the Charter, which
stipulated in the fi rst place the judicial settlement of disputes. Only if
the question could not be settled in that way, should it be submitted to
the Security Council by virtue of Article 37 of the Charter. Such was the
normal order of the relationship between the International Court of
Justice and the Security Council; such was the order provided for in the
joint amendment.
Th e Netherlands delegation would vote in favour of that amendment.
Mr. Demesmin (Haiti) referred to the fact that several representatives
who had been opposed to his delegation’s amendment had said that that
amendment was inconsistent with the Statute of the International Court
of Justice. But it was not a case of a dispute of an indeterminate nature,
but of a special case calling for an exceptional law, and thus derogation
from the ordinary law. Th e United Kingdom representative had himself
declared that what was involved was an obligation not provided for in
the Statute of the International Court of Justice as it stood. It seemed,
Annex 10
1770 A/C.6/SR.103
therefore, that if the Statute of the Court were inconsistent with the
provisions of the Haitian amendment, it must also be inconsistent with
the provisions contained in the joint amendment of Belgium and the
United Kingdom.
Th e French representative had said he would support any text which gave
jurisdiction to the International Court of Justice. Th e Haitian amendment
satisfi ed him on that point. Article 38 of the Statute of the International
Court of Justice provided that:
Th e Court . . . shall apply:
a. International conventions, whether general or particular . . .
Th e convention with which the Sixth Committee was dealing was a particular
convention coming within the scope of the Statute of the Court.
Th e representative of Haiti pointed out that the joint amendment of
Belgium and the United Kingdom envisaged State responsibility. Th e
Committee, however, had rejected (93rd meeting) the principle of the
criminal responsibility of the State. It was therefore a matter merely of
civil responsibility. But there could be no civil responsibility before the
culpability of the State was established. Th e Haitian delegation accepted
the principle of civil responsibility because it regarded the convention as
an exceptional law. Th e guilty State could be responsible under civil law
only to the victims of the crime of genocide. It would be illogical for the
plaintiff State to ask for damages unless the victims themselves benefi ted
therefrom. Th e same principle applied if a State committed the crime of
genocide against its own nationals.
Th e representative of Haiti added that the crime of genocide could be
committed without world peace being imperilled. Th at was why it was
advisable to contemplate putting the principles of the United Nations into
eff ect. Th e United Nations Charter, unlike the Covenant of the League of
Nations, provided not only for respect on an international plane for the
rights of States, but also for respect for the rights of individuals. Respect
for human life should be guaranteed and it was for the International
Court of Justice, in pursuance of a particular convention, to ensure that
guarantee. Finally, it was unquestionable that the victims were best qualifi
ed to lay the matter before the International Court of Justice.
Article 34 of the Statute of the Court provided that “Th e Court, subject
to and in conformity with its rules, may request of public international
Annex 10
A/C.6/SR.103 1771
organizations information relevant to cases before it . . .” Th at Article proved
that the Statute of the Court was not inconsistent with the provisions of
the amendment submitted by the delegation of Haiti.
Mr. Sundaram (India) pointed out that in the fi rst amendment submitted
by the United Kingdom delegation [A/C.6/236 ], it was laid down
that the matter should, “at the request of any party to the dispute,” be
referred to the International Court of Justice. In the joint amendment
of Belgium and the United Kingdom [A/C.6/258] it was provided that:
“Any dispute . . . shall be submitted to the International Court of Justice at
the request of any of the High Contracting Parties”. Th e representative of
India felt that that change of wording did not improve the text. It would
be advisable, on the contrary, to replace that phrase by the words “at the
request of any of the parties to such dispute”, as suggested by the Indian
amendment [A/C.6/260].
Th e Egyptian representative had said that if the Committee adopted the
joint Belgian and United Kingdom amendment, the last part of the text
of article X proposed by the Ad Hoc Committee should be added. Th e
representative of India considered that since the reference to an international
criminal court had been omitted from article VII, and since it
would be a long time before such a court was established, it was useless
at that stage to provide against such a contingency in article X.
Mr. Sundaram recalled, moreover, that the joint Belgian and United
Kingdom amendment added the phrase “or fulfi lment” and that the representative
of Greece had said that there was no great diff erence between
applying and fulfi lling a convention. Th e representative of India felt,
however, that the word “application” included the study of circumstances
in which the convention should or should not apply, while the word
“fulfi lment” referred to the compliance or non-compliance of a party with
the provisions of the convention. Th e word “fulfi lment” therefore had a
much wider meaning.
Th e representative of India considered that the inclusion of all disputes
relating to the responsibility of a State for any of the acts enumerated
in articles II and IV would certainly give rise to serious diffi culties. It
would make it possible for an unfriendly State to charge, on vague and
unsubstantial allegations, that another State was responsible for genocide
within its territory.
Annex 10
1772 A/C.6/SR.103
Th e representative of India said that those were the reasons why his
delegation could not accept the joint Belgian and United Kingdom
amendment.
Mr. Pescatore (Luxembourg) recalled that certain representatives had
stated that the concept of responsibility in that fi eld was still unclear and
that it was not known who might claim rights to reparations following the
perpetration of a crime of genocide. It seemed, however, that the principle
that no action could be instituted save by a party concerned in a case
should be applied in that connexion. Such responsibility would thus arise
whenever genocide was committed by a State in the territory of another
State. In that case, the State which had suff ered damage would have a right
to reparation. Th e joint Belgian and United Kingdom amendment gave
the International Court of Justice the opportunity of deciding whether
or not damages should be granted, and it would be for the plaintiff to
prove the injury sustained.
Mr. Maktos (United States of America) called attention to the fact that,
when he had spoken previously on a point of order, he had had in mind
the second Belgian amendment [A/C.6/252]; he had therefore asked that
that amendment should be discussed fi rst. As it was in fact the fi rst Belgian
amendment [A/C.6/217 ] which the Iranian delegation had reintroduced,
it had been perfectly logical to begin by discussing the joint amendment,
in accordance with the Chairman’s ruling.
Mr. Agha Shahi (Pakistan) considered that the joint Belgian and United
Kingdom amendment aimed at reviving the principle of an international
court to sentence those responsible for the crime of genocide, a principle
which the Committee had recently rejected (98th meeting).
Th e representative of Pakistan considered, moreover, that that amendment
had not been suffi ciently clearly drafted. Th e expression “responsibility
of a State”, in particular, was too abstract for such a matter as criminal
law, which called for accuracy and clarity. According to that amendment,
the State would have to be given a fi ctitious legal character, a convenient
procedure in civil or commercial matters but not in criminal law nor,
a fortiori, in the convention.
Th e representative of France had said that it was diffi cult to interpret the
expression “responsibility of a State”, because article X did not provide for
the conviction of a State, but dealt with damage caused by the crime of
Annex 10
A/C.6/SR.103 1773
genocide and reparation for such damage. Th e representative of Pakistan
was doubtful as to the advisability of dealing with civil responsibility in
a document which referred solely to a criminal matter. He would have
preferred the words used in article V referring to the constitutionally
responsible rulers (95th meeting) rather than the words “responsibility of
a State”. Th e former would make the text clearer and more accurate.
Mr. Lapointe (Canada) asked the United Kingdom representative what
was meant by “responsibility of a State”. Did it refer to civil or to criminal
responsibility, or to both at the same time? He made that request
because, when the Committee had discussed articles V and VII, the
United Kingdom delegation had submitted an amendment [A/C.6/236,
A/C.6/236/Corr.1] the purpose of which was to defi ne the responsibility
of States in respect to genocide. It then withdrew that amendment (100th
meeting), on the ground that it would be more appropriate to submit
it during the discussion of article X. If the United Kingdom delegation
understood the responsibility of a State to mean criminal responsibility,
it was reintroducing an idea that the Committee had rejected during the
discussion of article V (93rd meeting). If not, it should be made clear
that civil responsibility alone was intended.
Mr. Zourek (Czechoslovakia) said that the Committee was discussing
guarantees for the application of the convention. Th ose guarantees should
be appropriate to the object of the convention, which was to ensure the
prevention and punishment of the crime of genocide.
Genocide was brought about by racial, national or religious hatred. Th at
crime might be committed unexpectedly and on a large scale. Legal
guarantees, however, seemed too slow to ensure the eff ective prevention
of the perpetration of such a crime.
The representative of Czechoslovakia observed that there was every
reason to think that the human group concerned would be massacred
before the completion of proceedings instituted with the International
Court of Justice. Th e Czechoslovak delegation asked that supervision of
the implementation of the convention should be entrusted to the Security
Council, which had appropriate means at its disposal for stopping,
should occasion arise, the perpetration of the crime of genocide. In that
connexion Mr. Zourek regretted that the Committee had not retained
article VIII as proposed by France, the USSR, and Iran (102nd meeting).
Annex 10
1774 A/C.6/SR.103
He considered that the clause contained in the joint Belgian and United
Kingdom amendment would be inoperative. As the Polish representative
had said, it might even prove dangerous, since it would make it impossible
to resort in time to the other organs of the United Nations and, in
particular, to the Security Council, which alone could intervene with the
necessary speed in very serious cases.
Th e Czechoslovak delegation would therefore vote against the amendment
submitted by Belgium and the United Kingdom.
Mr. Medeiros (Bolivia) recalled that, during the discussion on article VII,
he had explained (97th meeting) the reasons for which he would vote for
the United Kingdom amendment. Th e joint Belgian and United Kingdom
amendment was all the more necessary since the Committee had refused
to accept the principle of an international tribunal.
Th e problem of the responsibility of individuals should be studied by
the International Law Commission. Th e problem of the international
responsibility of States should be submitted to the International Court of
Justice. It would thus be possible to pass indirect sentence on individual
acts. In accordance with Article 36 of its Statute, the Court would be able
to decide whether the crime of genocide had been committed in the territory
of a State. Once that fact had been established, the State concerned
would have to punish the off enders. Th e international responsibility of
States thus entailed practical results.
Th e Bolivian representative thought that the joint Belgian and United
Kingdom amendment considerably improved article X. On the other hand,
the amendment submitted by the delegation of Haiti seemed inconsistent
with Article 34 of the Statute of the Court.
Th e Bolivian delegation would therefore vote against the Haitian amendment.
Mr. Fitzmaurice (United Kingdom), replying to the Canadian representative,
said that the responsibility envisaged by the joint Belgian and
United Kingdom amendment was the international responsibility of States
following a violation of the convention. Th at was civil responsibility, not
criminal responsibility.
Th e meeting rose at 5.55 p.m.
Annex 10
Annex 11
UN General Assembly, Sixth Committee, Third Session 104th Meeting, A/C.6/SR.104
(13 November 1948), reproduced in Abtahi & Webb, The Genocide Convention:
The Travaux Préparatoires (Martinus Nijhoff 2008)
Th e Genocide Convention
Th e Travaux Préparatoires
By
Hirad Abtahi and Philippa Webb
Volume One
2008
Annex 11
xiv Contents
A/C.6/SR.103 ........................................................................... 1759
A/C.6/SR.104 ........................................................................... 1775
A/C.6/SR.105 ........................................................................... 1786
A/C.6/SR.106 ........................................................................... 1802
A/C.6/SR.107 ........................................................................... 1812
A/C.6/SR.108 ........................................................................... 1824
A/C.6/SR.109 ........................................................................... 1835
A/C.6/SR.110 ........................................................................... 1849
A/C.6/SR.128 ........................................................................... 1864
A/C.6/SR.129 ........................................................................... 1871
A/C.6/SR.130 ........................................................................... 1882
A/C.6/SR.131 ........................................................................... 1898
A/C.6/SR.132 ........................................................................... 1910
A/C.6/SR.133 ........................................................................... 1922
A/C.6/SR.134 ........................................................................... 1937
Table of Contents: Annexes ...................................................... 1943
A/C.6/206 ................................................................................. 1962
A/C.6/209 ................................................................................. 1963
A/C.6/211 ................................................................................. 1964
A/C.6/213 ................................................................................. 1967
A/C.6/214 ................................................................................. 1968
A/C.6/215/Rev.1 ....................................................................... 1968
A/C.6/217 ................................................................................. 1972
A/C.6/218 ................................................................................. 1975
A/C.6/221 ................................................................................. 1976
A/C.6/222 ................................................................................. 1977
A/C.6/223 & Corr.1 ................................................................. 1977
A/C.6/224 & Corr.1 ................................................................. 1978
A/C.6/225 ................................................................................. 1979
A/C.6/227 ................................................................................. 1983
A/C.6/229 ................................................................................. 1983
A/C.6/230 & Corr.1 ................................................................. 1984
A/C.6/231 ................................................................................. 1984
A/C.6/232/Rev.1 ....................................................................... 1985
A/C.6/235 ................................................................................. 1985
A/C.6/236 & Corr.1 ................................................................. 1986
A/C.6/238 ................................................................................. 1988
A/C.6/241 ................................................................................. 1991
Annex 11
A/C.6/SR.104 1775
HUNDRED AND FOURTH MEETING
Held at the Palais de Chaillot, Paris, on Saturday, 13 November 1948,
at 10.50 a.m.
Chairman: Mr. R.J. Alfaro (Panama).
53. Continuation of the consideration of the draft convention on
genocide [E/794 ]: report of the Economic and Social Council [A/633]
Appointment of a drafting committee
Th e Chairman proposed the appointment of a drafting committee consisting
of the following members: Belgium, China, Cuba, Egypt, France,
Poland, Union of Soviet Socialist Republics, United Kingdom, United
States of America.
It was so agreed.
Article X (continued )
Mr. Morozov (Union of Soviet Socialist Republics) stated that the joint
United Kingdom and Belgian amendment [A/C.6/258] was not acceptable
to the USSR delegation because its adoption would not prevent acts of
genocide or violations of the convention. Th e purpose of the amendment
seemed to be to prevent any country from submitting to the Security
Council or to the General Assembly any complaint in regard to acts
of genocide, thereby preventing the United Nations from taking quick
action. Th e mass extermination of a human group could not be called a
dispute between the parties to the convention and therefore could not be
within the province of the International Court of Justice. Moreover, the
Court was not the competent body to consider situations endangering
the maintenance of international peace and security, since it did not have
the means to prevent acts of genocide.
Th e question under discussion was not the criminal but the civil responsibility
which provided for damages for acts of genocide. Th e obligation
to provide for damages could exist only as a result of the admission of
the off ence by the State which had taken part in the crime, and not by
the rulers of the State.
Annex 11
1776 A/C.6/SR.104
Th e proposed amendment of the United Kingdom and Belgium was only
an attempt to submit, in another form, an amendment to article V in
order to reintroduce the idea of the criminal responsibility of States for
acts of genocide. Th at idea had been rejected by the Committee (93rd
meeting). Mr. Morozov hoped that the Committee would again show its
reluctance to include such a provision in the convention.
Mr. Messina (Dominican Republic) pointed out that when the Committee
had discussed article V of the draft convention, the United Kingdom
delegation had proposed [A/C.6/236 ] the addition of a paragraph providing
that when crimes of genocide were committed by or on behalf of
Governments, such acts should be considered a violation of the convention.
He had opposed that amendment not only because it was contrary to the
fi rst part of article V, which had already been approved (95th meeting),
but also because, according to the law of the Dominican Republic, a legal
entity could not be considered guilty of a crime.
Th e joint amendment to article X submitted by the United Kingdom and
Belgium provided that any dispute among contracting parties should be
submitted to the International Court of Justice at the request of one of
the parties.
Th at proposal appeared to reproduce the same views as were refl ected in
the United Kingdom addition to article V. Th e new joint amendment
should not be included in the convention; even without its inclusion the
International Court of Justice would be competent to deal with disputes
among States and decide on violations or reparations. Since the States
which would sign the convention were already parties to the Statute of
the International Court of Justice, it would be suffi cient for those which
had not yet accepted the compulsory jurisdiction of the Court to accept
it, in which case the jurisdiction of the Court would be even greater.
Mr. Messina concluded by stating that his delegation would not vote in
favour of the joint amendment submitted by the United Kingdom and
Belgium.
Mr. Ingles (Philippines) wished to reply to a direct allusion made at the
103rd meeting by the representative of the Netherlands. Article V had
been amended by the Committee so as to exclude constitutional monarchs
from its provisions, as some delegations had stated that their Governments
would not be able to accept the convention if it included any provision
Annex 11
A/C.6/SR.104 1777
making constitutional monarchs responsible for acts of genocide. He
wondered whether the Committee, having recognized in the convention
the constitutional fi ction that “the king can do no wrong”, was also going
to accept the constitutional principle that “the State can do no wrong.”
Some delegations might not be willing to be parties to the convention if
it contained a provision holding States responsible for acts of genocide.
Th e principle of State immunity would certainly be more justifi ed than
the fi ction of monarchical irresponsibility if the purpose of the Committee
in drafting the convention was to punish the real authors of genocide.
Th e Philippine delegation favoured the text of article X as drafted by the
Ad Hoc Committee because it recognized the right of contracting parties
to bring a dispute as to the interpretation or application of the convention
before the International Court of Justice. It was, however, against the joint
amendment of the United Kingdom and Belgium, which would extend
the jurisdiction of the Court to disputes relating to the responsibility of
States for acts of genocide. Article V excluded the criminal responsibility
of States for acts of genocide, and Mr. Ingles recalled that the Committee
had rejected (96th meeting) the United Kingdom amendment supporting
the idea that genocide might be committed by or on behalf of
a State.
Th e United Kingdom representative had implied at the 103rd meeting that
his delegation had abandoned the concept of the criminal responsibility
of States. It must be assumed, therefore, that the new joint amendment
envisaged some sort of civil responsibility, the benefi ciary of which was
not specifi ed. Th e fundamental purpose of the original text of article
X was to provide for an agency for the settlement of disputes between
States only with respect to the interpretation and application of the provisions
of the convention. A breach of the convention by a signatory State
would be an act of international delinquency but not a crime against
international law.
Although private persons might be held primarily responsible, as individuals,
for acts committed by the State, that did not necessarily mean that
States should be held directly responsible for the acts of private individuals.
As had been pointed out by the United Kingdom representative (64th
meeting), when a State was provoked by acts of genocide committed
against its nationals, the only remedy was to resort to war, and the stakes
were therefore higher than the award of pecuniary damages.
Annex 11
1778 A/C.6/SR.104
For those reasons, the Philippine delegation had supported the punishment
of individuals only, either by national or international criminal courts, An
award of damages would not be an adequate substitute for the punishment
of the individual criminal.
Mr. Lachs (Poland) said he was disturbed to notice how many delegations
had shown readiness to accept the joint amendment. He had pointed out,
at the 103rd meeting, the diffi culty which would arise in the practical
application of the suggested provision, which would not only not help
but would constitute an obstacle to the prevention of genocide. Mr.
Lachs disagreed with the reference made by the Netherlands representative
(103rd meeting) to Article 33 of the Charter, inasmuch as that Article
dealt with cases which might be settled by negotiation, mediation or
other peaceful means.
In his statement at the 103rd meeting, the United Kingdom representative
had explained what he meant by “responsibility of a State”. Mr. Lachs
pointed out that such responsibility implied the compensation due for a
wrong committed, but that such questions should not be covered by a
convention for the punishment of crimes. If genocide were committed,
no restitution or compensation would redress the wrong. Th e convention
would be rendered valueless if it were couched in terms which might
allow criminals who committed acts of genocide to escape punishment
by paying compensation.
Mr. Raafat (Egypt) wished to reply to certain comments made on his
statement at the 103rd meeting concerning the deletion of the last part
of article X.
Th e Iranian representative had said that the last part of article X should be
deleted; Mr. Raafat pointed out, however, that although no international
criminal court existed as yet, it would be advisable not to preclude the
possibility of establishing such a court at a later date. Th e Committee,
therefore, should not adopt the Iranian proposal [A/C.6/217] for the deletion
of the second part of article X.
Mr. Raafat requested that the joint amendment of Belgium and the United
Kingdom should be divided into two parts and voted upon separately.
Mr. Abdoh (Iran), referring to the amendment submitted by the representative
of Haiti (103rd meeting), said that in his opinion it was contrary
Annex 11
A/C.6/SR.104 1779
to the terms of Article 34 of the Statute of the International Court of
Justice.
Turning to the question of the joint amendment submitted by Belgium
and the United Kingdom, Mr. Abdoh said that it would not preclude the
possible intervention of other competent organs of the United Nations,
such as the Security Council or the General Assembly. When a case of
genocide arose which was a threat to international peace and security,
Chapters VI and VII of the Charter might be applied. Article 36 of the
Statute of the Court permitted the intervention of that body in the cases
referred to in the joint amendment.
Th e Iranian representative felt that the amendment did not clearly determine
the civil responsibility of States with regard to the crime of genocide;
he would therefore appreciate a clarifi cation by the United Kingdom
representative on various points.
When answering a question by the representative of Canada, the United
Kingdom representative had said (103rd meeting) that he envisaged civil
responsibility in his amendment. In international law, a State asked for
reparation of damages infl icted on its nationals by another State; but in
the case of genocide, it was a question of injuries infl icted on citizens by
citizens of the same State. Mr. Abdoh wondered how the civil responsibility
of the State would arise. Reparations could be paid to a State when
its citizens had been the victims of an act of genocide in another State,
but in some of the cases envisaged in the convention, it was diffi cult to
determine which State would have the right to damages.
Th e representative of Iran would also like to have the views of the representative
of the United Kingdom on the nature of the damages, if a
State were not directly but indirectly concerned, merely as signatory to
the convention. If each State party to the convention were entitled to
reparations, such a provision would obviously lead to abuse.
Th e International Court of Justice could not infl ict fi nes and, furthermore,
Mr. Abdoh wished to know what would be the juridical basis for
receiving such moneys.
Mr. Fitzmaurice (United Kingdom) expressed surprise that certain delegations
had argued that provision to refer acts of genocide to the International
Court of Justice might be a hindrance to the punishment of the crime.
Annex 11
1780 A/C.6/SR.104
In reply to statements made by the representatives of the USSR and Poland
(103rd meeting), he stated that reference to the International Court could
not prevent the submission of a case of genocide to the Security Council
if it threatened international peace and security. Th e reference of disputes
as to the responsibility of States under the convention, or as to the interpretation
of the convention, could not in any way aff ect the submission
of cases to any of the competent organs of the United Nations.
With regard to the questions put to him by the representative of Iran, Mr.
Fitzmaurice wished to point out that he did not contemplate that a case of
cash reparations would arise. Th e cases of reparation mentioned by the Iranian
representative did not occur in acts of genocide, because the off ences
were generally committed by the State against its own nationals.
An argument which had been put forward in the Committee was that to
refer cases to the International Court of Justice would be useless because
any action on its part would be taken too late and would not repair
injuries already committed. Th e United Kingdom representative did not
think that acts of genocide occurred suddenly; genocide was a process
in which racial, religious or political groups were gradually destroyed.
When it became clear that genocide was being committed, any party to
the convention could refer the matter to the International Court of Justice.
Should the Court decide that a breach of the convention had been
committed, it could order punishment. In accordance with Article 94 of
the Charter, Member States were legally bound to comply with the decisions
of the International Court. Furthermore, Article 94, paragraph 2
of the Charter provided that if a State failed to perform the obligations
incumbent upon it under a judgment rendered by the Court, the other
party might have recourse to the Security Council.
Th e United Kingdom delegation had always taken into account the enormous
practical diffi culties of bringing rulers and heads of States to justice,
except perhaps at the end of a war. In time of peace it was virtually impossible
to exercise any eff ective international or national jurisdiction over
rulers or heads of States. For that reason, the United Kingdom delegation
had felt that provision to refer acts of genocide to the International Court
of Justice, and the inclusion of the idea of international responsibility of
States or Governments, was necessary for the establishment of an eff ective
convention on genocide.
Annex 11
A/C.6/SR.104 1781
Mr. Fitzmaurice accepted the amendment submitted by the representative
of India (103rd meeting).
Mr. Spiropoulos (Greece) remarked that the Committee’s confusion on
the article under discussion was due in the fi rst place to the sentence in the
joint amendment referring to the responsibility of States for acts covered
by article II and IV of the convention; and in the second place to the
statement made by the representative of France (103rd meeting) which, for
the fi rst time, introduced a reference to the civil responsibility of States.
Article X embodied provisions which were not new and could be found
in almost any other convention established after the First World War.
As a general rule, the State was responsible for acts of genocide committed
in its territory and that provision was covered by article I of the convention.
If the crime were committed by private individuals, the State was
not responsible unless it failed to take measures to punish the persons
responsible. If public offi cials or rulers committed the crime, the State
could not be held to be criminally responsible; it was responsible in cases
of violation of international obligations.
Genocide could be committed against the nationals of the State itself, or
against aliens. If a State ordered the destruction of a minority group which
included aliens, the convention was superfl uous, because the principles
of international law would in any case have been violated. Th e nationals
of the State itself needed protection, not the aliens. Th e signatory States
undertook only to prevent and punish the crime of genocide and would
not assume any obligation as to the nature or extent of the reparations
to be made.
Mr. Demesmin (Haiti), replying to the arguments advanced by several
representatives, to the eff ect that his amendment was contrary to the provisions
of Article 34 of the Statute of the International Court of Justice,
which proclaimed that only States could be parties in cases before the
Court, cited Article 13 b of the United Nations Charter which mentioned
the General Assembly’s responsibility for assisting in the realization of
human rights and fundamental freedoms for all without distinction as to
race, sex, language or religion. Th at was surely a more vital obligation than
the one contained in Article 34 of the Statute of the International Court
of Justice, especially as Article 103 of the Charter stated that obligations
under the Charter should prevail over any other obligations. Th e victims
Annex 11
1782 A/C.6/SR.104
of the crime of genocide were the persons most likely to wish to bring
the matter before the Court and they should be given the opportunity
to do so.
Th e joint amendment submitted by the delegations of Belgium and the
United Kingdom brought up the question of the responsibility of the
State. Th e concept of the criminal responsibility of the State had already
been rejected and without criminal responsibility there could be no
civil responsibility. It had also been decided (100th meeting) that cases
of genocide would be tried by national tribunals and no provision for
establishing an international tribunal had been included in the convention.
In those circumstances, the joint amendment was extremely weak
and would not be very eff ective.
In order to facilitate agreement, however, the representative of Haiti
withdrew his amendment.
Mr. Pratt de María (Uruguay), supported by Mr. Raafat (Egypt),
requested that the joint amendment should be put to the vote in parts
and that the phrase “including disputes relating to the responsibility of
a State for any of the acts enumerated in articles II and IV” should be
put to the vote separately.
In reply to a question by the representative of El Salvador, the Chairman
explained that the vote on the joint United Kingdom and Belgian amendment
would not aff ect the issue as to the last part of article X as drafted
by the Ad Hoc Committee. Th e original Belgian amendment [A/C.6/217 ]
for the deletion of the last part of the article had been re-submitted by
the representative of Iran (103rd meeting) and would be put to the vote
afterwards whatever the result of the vote on the joint amendment.
Mr. Chaumont (France) suggested dividing the amendment into three
parts for the purposes of the vote. Th e fi rst vote would be taken on the
question of inserting the word “fulfi lment”; the second on the phrase
“including disputes relating to the responsibility of a State for any of
the acts enumerated in articles II and IV”, and the third vote on the
rest of the amendment would at the same time settle the question as to
the deletion or retention of the last part of article X as drafted by the
Ad Hoc Committee.
Mr. Morozov (Union of Soviet Socialist Republics) did not agree to that
method of voting. Th e fi rst part of the joint amendment was exactly the
Annex 11
A/C.6/SR.104 1783
same as the fi rst part of the original draft except for the addition of the
word “fulfi lment”. Th at part could not, therefore, be considered as an
amendment and the only point that should be put to the vote was the
question of adding the word “fulfi lment” to the fi rst part of the basic text.
Th e second vote should be taken on the part of the joint amendment
starring with the words “including disputes”. If any other procedure were
followed, the Committee would be departing from its decision to take
the Ad Hoc Committee’s draft as its basic text.
Mr. Morozov reminded the Chairman that the Iranian amendment calling
for the deletion of the whole of article X had not yet been discussed.
Th e Chairman replied that amendments could not be divided for the
purpose of comparing parts of them with parts of the original text. Th e
joint amendment as a whole diff ered substantially from the basic text and
it was only being divided for the purpose of the vote.
In order to meet the point raised by the representative of the Soviet
Union he ruled that a separate vote would be taken on the question of
adding the word “fulfi lment”. Th e rest of the joint amendment would
then be put to the vote in parts, as requested by the representatives of
Uruguay and Egypt.
Mr. Morozov (Union of Soviet Socialist Republics) appealed against the
Chairman’s ruling.
Th e Chairman put the appeal to the vote.
Th e Chairman’s ruling was upheld by 28 votes to 5, with 10 abstentions.
Replying to a question by the representative of Cuba, the Chairman
said that the fact of putting the joint amendment to the vote in parts
did not aff ect his earlier ruling (103rd meeting) concerning the Iranian
amendment calling for the deletion of the second part of article X as
drafted by the Ad Hoc Committee. Th at amendment would be put to
the vote in due course.
He put to the vote the amendment submitted by the representative of
India (103rd meeting) to the joint amendment of the United Kingdom
and Belgium [A/C.6/258].
Th e Indian amendment was adopted by 30 votes to 9, with 8 abstentions.
Annex 11
1784 A/C.6/SR.104
Th e Chairman put to the vote the deletion of the word “fulfi lment” from
the joint amendment of the United Kingdom and Belgium.
Th e deletion was rejected by 27 votes to 10, with 8 abstentions.
Th e Chairman put to the vote the deletion of the words “including
disputes relating to the responsibility of a State for any of the acts enumerated
in articles II and IV” from the joint amendment of the United
Kingdom and Belgium.
Th e deletion was rejected by 19 votes to 17, with 9 abstentions.
Th e Chairman put to the vote the joint amendment of the United Kingdom
and Belgium as a whole, as amended by India.
Th e amendment was adopted by 23 votes to 13, with 8 abstentions.
Mr. Tsien (China) explained that he had abstained from voting because,
although he approved of the idea of submitting disputes to the International
Court of Justice, he did not think that the concept of the responsibility
of the State should be included in the convention.
The Chairman put the Iranian amendment [A/C.6/217] before the
Committee.
Mr. Demesmin (Haiti) said that, since the joint amendment had been
proposed in substitution for article X as drafted by the Ad Hoc Committee,
it would not be in order to put any further amendments to the vote.
In his opinion, the Committee had adopted the fi nal text of article X in
adopting the joint amendment as a whole, and the Iranian amendment
could no longer be considered.
Mr. Chaumont (France) did not agree with that interpretation of the vote.
He had voted in favour of the joint amendment only on the understanding
that a further vote would be taken concerning the last part of article X.
Mr. Kerno (Assistant Secretary-General in charge of the Legal Department)
said that it had been made quite clear before the vote that the
result of that vote would not prevent the Committee from taking a further
decision concerning the last part of article X. Th e adoption of the joint
amendment naturally meant that the Iranian amendment could not be
discussed in the form of a deletion, but it would be perfectly in order to
Annex 11
A/C.6/SR.104 1785
discuss the question if some representative were to propose the wording
of the last part of article X as an addition to the adopted text.
Th e Chairman endorsed the explanation given by the Assistant Secretary-
General.
Mr. Demesmin (Haiti), supported by Mr. Iksel (Turkey), maintained
the view that no further amendments should be discussed since the joint
amendment had been adopted in substitution for article X.
Mr. Morozov (Union of Soviet Socialist Republics) said that the rules of
procedure had been systematically violated in the course of the voting in
the Sixth Committee. When article VIII had been under discussion, the
proposals for the deletion of that article had been put to the vote fi rst,
but that procedure had been abandoned in connexion with article X. He
had challenged the Chairman’s ruling earlier in the meeting because he
had foreseen that it would lead to confusion if the Committee were to
consider part of the basic text as an amendment.
He had voted against the joint amendment, but, since it had been adopted
in substitution for the original text, there was nothing more to be done
and no further amendments could be considered. Th e only way to rectify
the matter would be to decide by a two-thirds majority to reverse the
decision that had been taken and to recommence the voting in accordance
with the rules of procedure.
Th e Chairman said that he had always acted in accordance with the will
of the Committee. In order to avoid lengthy debates, whenever a question
of procedure had arisen he had made a ruling immediately, so as to enable
representatives to challenge that ruling if they so desired. Whenever his
ruling had been challenged it had always been upheld by the vote of a
large majority of the Committee. Th e questions of procedure had thus
always been settled in accordance with the will of the Committee itself.
Mr. Spiropoulos (Greece), Rapporteur, said that the Committee had
often had to deal with diffi cult texts giving rise to complicated questions
of procedure and much time had been taken up in dealing with those
points. In his opinion, the Chairman had followed the best possible course
in dealing with questions of procedure.
Th e meeting rose at 1.00 p.m.
Annex 11
Annex 12
UN General Assembly, Sixth Committee, Third Session, 105th Meeting, A/C.6/SR.105
(13 November 1948), reproduced in Abtahi & Webb, The Genocide Convention:
The Travaux Préparatoires (Martinus Nijhoff 2008)
Th e Genocide Convention
Th e Travaux Préparatoires
By
Hirad Abtahi and Philippa Webb
Volume One
2008
Annex 12
xiv Contents
A/C.6/SR.103 ........................................................................... 1759
A/C.6/SR.104 ........................................................................... 1775
A/C.6/SR.105 ........................................................................... 1786
A/C.6/SR.106 ........................................................................... 1802
A/C.6/SR.107 ........................................................................... 1812
A/C.6/SR.108 ........................................................................... 1824
A/C.6/SR.109 ........................................................................... 1835
A/C.6/SR.110 ........................................................................... 1849
A/C.6/SR.128 ........................................................................... 1864
A/C.6/SR.129 ........................................................................... 1871
A/C.6/SR.130 ........................................................................... 1882
A/C.6/SR.131 ........................................................................... 1898
A/C.6/SR.132 ........................................................................... 1910
A/C.6/SR.133 ........................................................................... 1922
A/C.6/SR.134 ........................................................................... 1937
Table of Contents: Annexes ...................................................... 1943
A/C.6/206 ................................................................................. 1962
A/C.6/209 ................................................................................. 1963
A/C.6/211 ................................................................................. 1964
A/C.6/213 ................................................................................. 1967
A/C.6/214 ................................................................................. 1968
A/C.6/215/Rev.1 ....................................................................... 1968
A/C.6/217 ................................................................................. 1972
A/C.6/218 ................................................................................. 1975
A/C.6/221 ................................................................................. 1976
A/C.6/222 ................................................................................. 1977
A/C.6/223 & Corr.1 ................................................................. 1977
A/C.6/224 & Corr.1 ................................................................. 1978
A/C.6/225 ................................................................................. 1979
A/C.6/227 ................................................................................. 1983
A/C.6/229 ................................................................................. 1983
A/C.6/230 & Corr.1 ................................................................. 1984
A/C.6/231 ................................................................................. 1984
A/C.6/232/Rev.1 ....................................................................... 1985
A/C.6/235 ................................................................................. 1985
A/C.6/236 & Corr.1 ................................................................. 1986
A/C.6/238 ................................................................................. 1988
A/C.6/241 ................................................................................. 1991
Annex 12
1786 A/C.6/SR.105
HUNDRED AND FIFTH MEETING
Held at the Palais de Chaillot, Paris, on Saturday, 13 November 1948,
at 3.25 p.m.
Chairman: Prince Wan Waithayakon (Siam).
54. Continuation of the consideration of the draft convention on
genocide [E/794]: report of the Economic and Social Council [A/633]
Composition of the Drafting Committee
Th e Chairman proposed that the membership of the Drafting Committee
should be increased from nine to eleven, and appointed the representatives
of Australia and Brazil as members thereof.
At the request of Mr. Amado (Brazil) and Mr. Morozov (Union of Soviet
Socialist Republics), who suggested, respectively, the appointment of the
representatives of Iran and Czechoslovakia and were seconded by Mr.
Spiropoulos (Greece), the Chairman agreed to increase the membership
of the Committee to thirteen.
The representatives of Australia, Brazil, Czechoslovakia and Iran were
appointed members of the Drafting Committee.
Article X (conclusion)
Mr. Morozov (Union of Soviet Socialist Republics) pointed out that
at the 104th meeting the Committee had adopted a final text for
article X, although some amendments to that article still remained to be
considered.
Th ose amendments could not be discussed unless the Committee fi rst
acknowledged that an error in procedure had occurred and that, in voting
upon the joint Belgian and United Kingdom amendment [A/C.6/258], it
had in fact intended to vote on part only of the text of article X of the
draft convention.
Th e USSR representative moved, therefore, on a point of order, that the
votes on the joint amendment should be declared void and that a new
vote should be taken; it would thus be possible to put to the vote the
Annex 12
A/C.6/SR.105 1787
other amendments to article X before proceeding to a vote on the article
as a whole.
Th e Chairman pointed out that the joint amendment, which substituted a
new text for article X of the draft prepared by the Ad Hoc Committee, had
been considered as an amendment to that article, not as a proposal.
Th e Egyptian representative, when analysing the joint amendment (103rd
meeting), had divided it into two parts, corresponding to the two parts
of article X of the draft convention. First, that amendment involved
a two-fold addition to the fi rst part of the article: the addition of the
word “fulfi lment,” and the addition concerning “disputes relating to the
responsibility of a State for any of the acts enumerated in articles II and
IV.” Secondly, it implied the deletion of the second part of article X,
beginning with the words “provided that no dispute”. Th e representative
of Egypt had requested (104th meeting) a separate vote on the principle
of that deletion.
Th e Chairman had not given a ruling on that point, but when the representative
of Iran had reintroduced (103rd meeting) the Belgian amendment
[A/C.6/217], proposing the deletion of the second part of article
X, the Chairman had ruled that a vote on the joint amendment would
not prejudge the fate of the Iranian amendment nor the request of the
Egyptian delegation. Th e issue before the Committee was whether the
second part of article X should be deleted.
Mr. Raafat (Egypt) confi rmed that he had proposed that the deletion
of the last part of article X, a deletion which was implicit in the joint
amendment, should be voted on separately. He entirely agreed with the
Chairman’s interpretation of the matter.
Mr. Maktos (United States of America) considered that if any member
were at all uncertain as to the correctness of the Committee’s decisions,
it was preferable that such doubt should be disposed of. He therefore
suggested that the USSR representative’s request should be taken into
consideration and his wishes met.
Th e Chairman pointed out that the delegation of the Soviet Union had
not objected to a vote being taken on the joint amendment, and had raised
no objection until after the fi rst part of the amendment had been voted
on. He therefore regarded the vote on that amendment as perfectly valid.
Annex 12
1788 A/C.6/SR.105
Th e Committee should take a decision upon the request submitted by
the Egyptian representative concerning the last part of article X of the
draft convention.
Mr. Morozov (Union of Soviet Socialist Republics) reminded the Committee
that, after a vote had been taken on the separate parts of the joint
amendment, the Chairman had put article X as a whole to the vote, and
the Committee had adopted the fi nal text (104th meeting). Hence the
Committee could not possibly go on to vote on the second part of that
article unless it fi rst invalidated the entire earlier vote.
Th e only possible solution was to declare that vote void, to hold a fresh
vote on the two parts of the joint amendment, proposing respectively
the addition of the word “fulfi lment” and the addition of the passage
beginning “including disputes,” and then, without voting on article X as
a whole, to vote on the remaining amendments to the article.
If, however, the vote on article X were not declared void, the remaining
amendments could not be put to the vote and the Committee would
have to proceed immediately to consider another article.
In any case, to vote on the second part of article X would be a tacit admission
that the earlier vote was not valid. Respect for the rules of procedure
required that it should be expressly recorded that the vote was invalid,
and that was the object of the motion on a point of order submitted by
the delegation of the Soviet Union.
Th e Chairman said that after the representative of Haiti had spoken, the
joint amendment as a whole had been put to the vote, not article X of
the draft convention. As nobody had challenged that decision, the vote
was valid, but it did not preclude a decision on the Egyptian request
concerning a vote on the deletion of the second part of article X.
Th at procedure would presumably satisfy all members, since it gave the
Committee an opportunity to take a decision on the full text of article
X of the draft convention.
Mr. Fitzmaurice (United Kingdom) agreed with the Chairman that the
last part of article X should be put to the vote. It had been understood
that that part of the article would be considered, and some delegations,
when voting upon the joint amendment, had certainly been infl uenced
Annex 12
A/C.6/SR.105 1789
by the fact that they would have an opportunity fi rst to discuss, and later
to vote upon, the deletion of that part of article X.
Th e United Kingdom delegation would not vote in favour of retaining
that part of the article, because it had always intended that the text of
the joint amendment should replace the whole of article X.
Th e USSR representative’s motion was unjustifi ed; Mr. Fitzmaurice could
see no reason for holding a second vote on the various parts of the joint
amendment.
Mr. Chaumont (France) said that after the vote on the two parts of the
joint amendment, the Chairman had put the amendment as a whole to
the vote, in pursuance of rule 118 of the rules of procedure. Th e French
delegation, however, would not have agreed to that amendment if it had
been intended as a substitute for the whole of article X; and the Chairman
had expressly left it to be decided by a later vote whether or not the
second part of the article should stand (104th meeting).
Mr. Dihigo (Cuba) confi rmed the Chairman’s statement, and recalled that
before the vote, his delegation had been assured that the decision on the
joint amendment would not preclude discussion on the second part of
article X. No objection had been raised to the Chairman’s ruling.
Mr. Spiropoulos (Greece), Rapporteur, concurred in the Chairman’s
interpretation and suggested that the discussion should be terminated by
a ruling from the Chair.
Mr. Abdoh (Iran) proposed, as an alternative to the course suggested by
the Rapporteur, that some member of the Committee should propose
that the text of the second part of article X should constitute a separate
article of the convention.
Mr. Feaver (Canada) asked for clarifi cation on two points of procedure.
First, what exactly was a motion to delete an article? Was it a new proposal
or an amendment?
Secondly, when an amendment reproduced a substantial part of the original
text and omitted others, should the vote be taken on the amendment as
a whole or solely on the new words which it introduced into the original
text or the deletions which it entailed?
Annex 12
1790 A/C.6/SR.105
Mr. Feaver considered that if the second course had been taken, as the
representative of the Soviet Union had suggested, the confusion resulting
from the vote on the joint amendment of Belgium and the United
Kingdom would have been avoided.
Mr. Kerno (Assistant Secretary-General in charge of the Legal Department)
said the Committee’s diffi culties in the discussion of the draft
convention on genocide were largely due to the fact that the rules of
procedure were too narrow for a debate of that kind. Th e rules provided
only for relatively short proposals and amendments, and not for a text of
the magnitude of a draft convention. Was the draft convention on genocide
to be regarded as a single proposal, or was each article to be taken as a
separate proposal? Th e procedure so far had been based upon the latter
assumption; that had seemed the most practicable course.
Th e answer to the Canadian representative’s questions was that under that
procedure, a motion to delete or replace an article was a proposal and
not an amendment. Admittedly the distinction was sometimes diffi cult to
make, as in the case of the joint amendment of Belgium and the United
Kingdom. Th e fact that it was called an amendment did not mean that
it actually was an amendment.
In any case, the priority which had been given it could be justifi ed either
under rule 119, if it were considered as the amendment furthest removed
from the original text, or under rule 120, which authorized the consideration
of proposals in the order in which they had been submitted. Th e
Chairman’s decision had not been challenged, and therefore the Committee
as a whole had agreed that the amendment should be taken fi rst.
It was true that the text of that amendment indicated that it was intended
as a substitute for the whole of article X and, normally, once it had been
adopted, the second part of the article could not be discussed. Th at,
however, was not an absolute rule, because under rule 120 of the rules
of procedure it was for the Committee to decide whether or not to vote
on the next proposal.
It was unquestionable, in the fi rst place, that in reply to the question of
the Egyptian and Cuban delegations, the Chairman had stated that a
vote on that amendment would certainly not preclude the discussion of
the Iranian amendment relating to the second part of article X and, in
the second place, that the Chairman’s statement had not been challenged.
Annex 12
A/C.6/SR.105 1791
If that express reservation had not been made, it would probably have
been correct to consider that the vote on the joint amendment had ruled
out the other amendments. Th at vote had been valid and in order and
could not be reconsidered by the Committee except in the circumstances
provided for in rule 112 of the rules of procedure.
Mr. de Beus (Netherlands) wished to point out that, at the 104th meeting,
the Chairman had asked the Committee to take a decision on the
joint amendment submitted by Belgium and the United Kingdom and
had stated that, in conformity with rule 118 of the rules of procedure,
he was putting the whole “article” to the vote.
Th at must undoubtedly have been a slip of the tongue, since rule 118
referred to the division of proposals and since, moreover, the Chairman
had always stated that, after consideration of the joint amendment of
Belgium and the United Kingdom, the Committee would study the
remaining amendments to article X. Th e Netherlands representative had
not challenged the Chairman’s ruling because he had felt sure the Chairman
had simply made a slip.
Mr. Morozov (Union of Soviet Socialist Republics) thought that anything
other than the results of the discussion was irrelevant. Th e Chairman’s
words should not be interpreted, particularly in his absence; only what he
had actually said should be taken into consideration since it had led the
USSR representative to think that he was voting on article X as a whole.
Th e Chairman, quite unintentionally no doubt, had made a mistake in
procedure. No one, however, had challenged it. Th e alternatives were therefore
either to agree that article X had been adopted and consideration of
it was closed, or to admit that there had been a slight misunderstanding
and that the vote on the joint amendment of Belgium and the United
Kingdom was void.
Th e Sixth Committee, which dealt with legal questions, could not infringe
the rules of procedure and set such an unfortunate precedent. On the
contrary, its duty was to rectify the mistake in procedure which had been
committed.
Th e Chairman ruled that the Committee should continue consideration
of article X and come to a decision on the Iranian amendment which
called for the deletion of the second part of the text proposed by the Ad
Hoc Committee.
Annex 12
1792 A/C.6/SR.105
Mr. Morozov (Union of Soviet Socialist Republics) appealed against the
ruling as contrary to the rules of procedure. Article X had been adopted
as a whole; there was no sound reason for continuing to discuss it.
Th e Chairman put the appeal to the vote.
Th e Chairman’s ruling was upheld by 19 votes to 7, with 9 abstentions.
Th e Chairman opened the discussion on the amendment submitted by
the Iranian delegation [A/C.6/217]; the object of the amendment was to
delete the second part of article X, beginning with the words “provided
that”.
Mr. Abdoh (Iran) stated that the second part of article X mentioned the
reference of disputes to a competent international tribunal. Th at provision
had been added to article X with the sole aim of avoiding possible
clashes of jurisdiction between the International Court of Justice and
the international criminal tribunal mentioned in Article VII. Th at was
apparent from the Report of the Ad Hoc Committee on Genocide.1 Since
the Committee had decided to delete from article VII the reference to an
international tribunal, the second part of article X was superfl uous.
1 See Offi cial Records of the Economic and Social Council, third year, seventh session,
supplement No. 6, page 14.
Th e convention as it stood contained no reference to the jurisdiction of
an international criminal tribunal, nor did such a tribunal exist as yet.
Its establishment, to which Iran looked forward, would call for a special
convention in which provisions relating to the jurisdiction of the various
tribunals could be inserted; the convention on genocide could also be
amended to cover the same points.
Th e representative of Iran held that the Committee should concern itself
primarily with the task of bringing the various articles of the draft convention
into line with each other.
Mr. Aleman (Panama) moved the closure of the debate in pursuance of
rule 106 of the rules of procedure, as the Committee had been enlightened
on the scope of the amendment.
Annex 12
A/C.6/SR.105 1793
Mr. Morozov (Union of Soviet Socialist Republics), speaking on a point
of order, drew the Committee’s attention to the fact, that consideration of
the second part of article X could not be allowed as it was out of order.
When the Committee, in dealing with article VII, had taken a decision
concerning an international criminal tribunal, it had prejudged the fate
of all provisions relating to that tribunal. Since the jurisdiction of an
international criminal tribunal had not been agreed to, there could be no
question of any reference to it in another article of the convention.
Th e second part of article X should therefore not be discussed.
Mr. Maktos (United States of America), on the same point of order,
agreed with the USSR representative; he did not think that the Iranian
amendment should be put to a vote.
Th e Chairman ruled that the Iranian amendment had to be voted on
since, by its earlier vote, the Committee had reached a decision to that
eff ect.
He put the motion for closure to the vote.
Th e motion for closure was adopted by 21 votes to 1, with 8 abstentions.
Th e Chairman put to the vote the Iranian amendment [A/C.6/217] calling
for the deletion of the second part of article X.
Th e amendment was adopted by 22 votes to 8, with 6 abstentions.
Th e Chairman opened the discussion on the Australian amendment
[A/C.6/265], which provided for the addition of a second paragraph to
article X, reading as follows:
With respect to the prevention and suppression of acts of genocide, a Party
to this Convention may call upon any competent organ of the United
Nations to take such action as may be appropriate under the Charter of
the United Nations.
Mr. Tarazi (Syria) thought the amendment was not in order, in view
of the Committee’s decision on article VIII relating to action by United
Nations organs, and on the amendments to that article (101st meeting).
Th e Australian amendment reintroduced the principle of article VIII. It
Annex 12
1794 A/C.6/SR.105
could not therefore be considered unless the Committee decided to do
so by a two-thirds majority, in accordance with rule 112 of the rules of
procedure.
Th e Chairman agreed with the Syrian representative; the Australian
amendment would not be discussed unless, by a two-thirds majority, the
Committee decided otherwise.
Mr. Dignam (Australia) said he had foreseen that his amendment would
meet with that objection; he accepted the Chairman’s ruling, but hoped
that the Committee would decide in favour of considering an amendment
on such an important question.
Th e discussion on articles VIII and X had shown that it was necessary to
include in article X a provision relating to action by the United Nations,
when it was remembered how the decision to delete article VIII had been
secured. In the fi rst place, two more votes would have been suffi cient to
constitute the two-thirds majority which would have made possible the
resumption of the consideration of article VIII; moreover, several representatives
had said they had voted against further consideration of the
article solely for reasons of principle.
If the Committee agreed to consider the Australian amendment, no
lengthy discussion would be necessary. If that amendment were adopted,
a provision would be inserted in the convention which would be a proof
of general confi dence in the organs of the United Nations.
Mr. Maktos (United States of America) was quite ready to revise the
position he had taken up at the time of the vote (102nd meeting) on
the proposal to reconsider article VIII, as he did not wish to impede the
study of a question involving a principle contained in the Charter.
Mr. Kerno (Assistant Secretary-General in charge of the Legal Department)
said rule 112 of the rules of procedure contained nothing expressly
barring the reintroduction, in the course of the same session, of a proposal
previously adopted or rejected. He drew the Committee’s attention, however,
to the gravity of the precedent it would set by voting twice, almost
in succession, on whether a proposal should be considered afresh. Such
a procedure might have very important consequences. Should the Committee
consider, however, that the question before it was so important
as to justify that procedure, there was nothing in the rules of procedure
against it.
Annex 12
A/C.6/SR.105 1795
Mr. Kovalenko (Ukrainian Soviet Socialist Republic) appealed against
the Chairman’s ruling to the eff ect that the Australian amendment was
not in order.
Mr. Lachs (Poland) pointed out that the situation diff ered from that
which had confronted the Committee in connexion with article VIII.
Th e issue was not whether to reconsider a proposal, but whether, to study
an amendment occasioned by the new circumstances which had arisen
following the Committee’s decision on article X.
Mr. Chaumont (France) agreed with the Polish representative. Th e Committee,
when discussing article VIII (101st meeting), had been dealing with
the Ad Hoc Committee’s text and the joint amendment submitted by the
USSR and France. For article X, the Committee had adoptee a text fairly
far removed from that of the Ad Hoc Committee. Th at new text placed a
restrictive interpretation on the competence of certain international bodies.
Th e case was therefore quite diff erent from that of article VIII.
Mr. Chaumont held that it was not a question of reopening discussion
on the principle of article VIII, but simply of relating the basic idea of
the joint amendment of Belgium and the United Kingdom to another,
more general idea, which was contained in the Australian amendment. Th e
question was whether or not the Committee agreed with the Chairman’s
view. Th e appeal made by the representative of the Ukrainian Soviet
Socialist Republic was fully warranted.
Th e Chairman was overruled by 24 votes to 8, with 5 abstentions.
Mr. Maktos (United States of America) explained that he had abstained
because he was opposed to setting a dangerous precedent of the type
mentioned by the Assistant Secretary-General. He felt, nevertheless, that
the question under discussion was of fundamental importance.
Mr. Davin (New Zealand) explained that he had voted in favour of
upholding the Chairman’s ruling because he held that ruling to be correct.
If, however, a vote had been taken on the question as to whether
the item was to be reconsidered, he would have voted in favour of such
reconsideration.
Mr. Feaver (Canada) said he had voted in favour of upholding the
Chairman’s ruling on the grounds that a dangerous precedent might be set
by recognizing the possibility of reconsidering matters which had already
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been decided by the Committee and renewed discussion of which had
already been disallowed. He had no objection, however, to the Australian
amendment, the substance of which was in keeping with certain provisions
of the Charter.
Mr. Messina (Dominican Republic) said he had abstained for the same
reasons as the United States representative. He would have voted in
favour of reconsideration if the question had been put to the vote in
that form.
Mr. Tarazi (Syria) explained that he had voted in favour of upholding
the Chairman’s ruling because the rules of procedure stipulated that a
two-thirds majority of the Committee was required for the resumption
of the consideration of a proposal. Th e Syrian delegation, however, was
in favour of the Australian amendment, just as it had already voted in
favour of the amendment to article VIII submitted by the USSR and
France (102nd meeting).
Th e Chairman called upon the Committee to continue the discussion
on the Australian amendment.
Mr. Ti-tsun Li (China) supported the Australian amendment. He did not
share the point of view of delegations which might oppose that amendment
on the grounds that it merely reproduced certain provisions of the
Charter. Th e text proposed by Australia was not a mere repetition of the
Charter, since it applied specifi cally to the case of genocide; in any case,
it was sound practice to restate principles which could only strengthen
the convention. Moreover, the adoption of the Australian amendment
would preclude all possible doubts or disputes regarding the competence
of the organs of the United Nations in cases of genocide.
Th e Chinese delegation would therefore give its full support to the
amendment.
Mr. Aleman (Panama) moved the closure of the debate on the grounds
that the theory underlying the Australian amendment had been discussed
at length at the 101st meeting.
Mr. Fitzmaurice (United Kingdom) opposed the closure of the debate;
he pointed out that some delegations which had voted against the Ad Hoc
Committee’s text for article VIII (101st meeting) and against the joint
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A/C.6/SR.105 1797
amendment thereto submitted by the delegations of France, Iran and
the USSR (102nd meeting), might wish nevertheless to vote in favour
of the Australian amendment. Th ey should be given an opportunity to
state their position.
Th e Chairman put to the vote the motion submitted by the representative
of Panama for the closure of the debate.
Th e motion was adopted by 20 votes to 9, with 9 abstentions.
Th e Chairman put the Australian amendment [A/C.6/265] to the vote.
Th e amendment was adopted by 29 votes to 4, with 5 abstentions.
Mr. Fitzmaurice (United Kingdom) said that although his delegation considered
it unnecessary to include in the convention provisions conferring
on the organs of the United Nations powers which they already possessed
under the terms of the Charter, he had voted in favour of the Australian
amendment in order that it might be clear, beyond any doubt, that the
joint amendment of Belgium and the United Kingdom [A/C.6/258] did
not imply that recourse might be had only to the International Court
of Justice, to the exclusion of the other competent organs of the United
Nations.
Mr. Spiropoulos (Greece) said that, although he had voted in favour of
the joint amendment submitted by France, Iran and the USSR he had
abstained from voting because, the debate having been closed, he had been
unable to obtain particulars as to the exact signifi cance and scope of the
Australian amendment, which seemed to confl ict with the provisions of
the fi rst paragraph of article X.
Mr. Sundaram (India) said he voted against the Australian amendment
for the same reasons as the representative of Greece.
Mr. Feaver (Canada) said he voted against the Australian amendment
as he had voted against article VIII of the convention, which contained
the same idea, because his delegation still believed that such provisions
were mere repetitions.
Mr. Dignam (Australia) said that, despite the votes taken at the 102nd
meeting on the text of article VIII and on the proposal to reconsider the
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question, his delegation had submitted the amendment because it felt
that the question was very important; it assumed full responsibility for
its action.
Th e Australian delegation thought that rule 112 of the rules of procedure
could be justifi ably invoked whenever an important question was under
discussion; it would not hesitate to exercise all the rights to which it was
entitled under the rules of procedure.
Mr. Dihigo (Cuba) said that, notwithstanding his earlier opposition to
article VIII of the draft convention (101st meeting), he had voted for
the Australian amendment because it did not reproduce the provisions of
article VIII, paragraph 2 which, in his delegation’s opinion (102nd meeting),
would have been likely to produce a clash of jurisdiction between
the International Court of Justice and the other organs of the United
Nations.
Mr. de Beus (Netherlands) explained that he had voted for the Australian
amendment because his delegation was anxious that the convention on
genocide should be acceptable to the greatest possible number of Member
States. He had voted against article VIII because he considered it unnecessary.
A number of delegations, however, had deplored the disappearance of
that article as a result of the rejection of the joint amendment submitted
to it by the delegations of France, Iran and USSR; and furthermore the
United Kingdom representative had said that the Australian amendment
made it clear beyond doubt that the provisions of the joint amendment
of Belgium and the United Kingdom did not exclude appeal to competent
organs of the United Nations other than the International Court of
Justice. In those circumstances, he had voted in favour of the Australian
amendment.
Mr. Maúrtua (Peru) explained that his delegation had voted against the
Australian amendment as being unnecessary. Also, his delegation was
reluctant to see the Committee set an unfortunate precedent by adopting
a proposal on a question which it had formerly rejected.
Mr. Kerno (Assistant Secretary-General in charge of the Legal Department),
answering Mr. Dignam, recalled that the rules of procedure had
been adopted provisionally and that they had not been fi nally adopted until
after they had been amended during the second session of the General
Assembly. Th e rules of procedure were far from perfect, and the Secretariat
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A/C.6/SR.105 1799
took note of any diffi culties to which the application of their provisions
gave rise, so that, if need be, the General Assembly might revise them.
Mr. Maktos (United States of America) pointed out that the application
of the rules of procedure had not caused any diffi culty in the case
of the Australian amendment. Th e United States delegation realized that
the provisions of rule 112 must not be resorted to save in cases of exceptional
importance. Mr. Maktos wished to make it perfectly clear that he
had been ready to vote for reconsideration of the question dealt with by
article VIII in order not to stand in the way of the majority vote of the
Committee.
At the request of Mr. Sundaram (India), the Chairman put to the vote
article X of the draft convention, as amended by India (103rd meeting),
by Australia and by Belgium and the United Kingdom [A/C.6/258].
Article X was adopted by 18 votes to 2, with 15 abstentions.
Mr. Sundaram (India) explained that he had voted against because the
provisions of the joint amendment of Belgium and the United Kingdom,
which constituted the fi rst paragraph of article X, were capable of being
interpreted in a much wider sense than the authors of the amendment
had themselves intended. By virtue of that article, States parties to the
convention could be called before the International Court of Justice on
the basis of vague accusations, for instance, that they had not carried out
the provisions of the convention or that they were implicated in the acts
set forth in articles II and IV.
Th e Indian delegation would have been prepared to agree to the Ad Hoc
Committee’s text of article X if its last part, which had become superfl uous,
had been deleted; but it could not approve the text of article X as
adopted by the Committee.
New article submitted by the USSR delegation
Th e Chairman opened the discussion on the proposal submitted by the
USSR delegation [A/C.6/215/Rev.1, paragraph 10] calling for the insertion
in the convention of an article relating to the disbandment of organizations
which aimed at stirring up racial, national or religious hatred and
inciting to commission of acts of genocide.
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Mr. Morozov (Union of Soviet Socialist Republics) said his delegation
wished to complete the convention on genocide by an article which it
would be logical to insert after article X and before the fi nal clauses, since
it imposed an additional obligation on the signatory States.
His delegation’s reasons for proposing the additional article were the
same as those which had determined its attitude towards various other
articles of the convention; the Soviet Union believed that the main purpose
of the convention was to prevent genocide and that, consequently,
all the measures necessary to attain that end must be taken. If in any of
the States, parties to the convention, organizations existed which aimed
at inciting to racial, national or religious hatred, or at encouraging the
perpetration of crimes of genocide, it would indeed be strange if those
States were not under the obligation to disband them and to disallow
their existence in the future.
Mr. Morozov could not understand why the Ad Hoc Committee had
rejected a similar proposal.1 He hoped that the delegations which were
anxious to see the convention become an eff ective weapon in the fi ght
against genocide would not fail to support the USSR proposal.
1 See Offi cial Records of the Economic and Social Council, third year, seventh session,
supplement No. 6, page 14.
Mr. Maktos (United States of America) emphasized the danger involved
in the adoption of the proposal. Th e object of the proposal was to prohibit
the existence of certain organizations. But who was to determine
whether a particular organization was or was not pursuing the ends indicated
in the proposal? Both that proposal, and the amendment relating
to propaganda aimed at provoking acts of genocide [A/C.6/215/Rev.1
paragraph 4 f ], could lead only to an increase in international tension,
and would merely serve as pretexts to harass States parties to the
convention.
Th e Ad Hoc Committee had rejected a similar proposal submitted by the
Polish representative; for reasons stated in the report, it had also rejected
the proposal to reconsider the question.
Th e convention contained the most far-reaching pledge by the signatories
to prevent and prohibit the crime of genocide. Consequently, if a State
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A/C.6/SR.105 1801
failed to perform its obligation, any other party to the convention could
lay a complaint before the competent organ of the United Nations.
Mr. Maktos urged the Committee not to include anything in the convention
which would render it unacceptable to many Governments. It must not be
forgotten that what was important was not to draft a theoretically perfect
document, but to secure the greatest number of accessions to the convention.
Mr. Davin (New Zealand) supported the views of the United States representative;
his delegation opposed the article proposed by the delegation
of the Soviet Union because it was very dangerous and likely to lead to
many abuses.
Mr. Fitzmaurice (United Kingdom) also opposed the adoption of the
USSR proposal for the two following reasons.
In the fi rst place, it was not necessary to specify, as did the proposal, the
measures which States must take in order to fulfi l their general obligation
to prevent and prohibit genocide, an obligation which they would have
undertaken by signing the convention.
In the second place, an article of the kind proposed by the delegation
of the Soviet Union for insertion in the convention, would create diffi
culties for the United Kingdom and other countries which recognized
the right of any organization, whether political or not, to hold meetings
and to express its opinions freely, unless it advocated the use of violence
and unless its activities were subversive in relation to the Government.
Th e United Kingdom delegation feared lest such an article might enable
a State to ask another to disband certain political organizations on the
pretext that their activities were directed against certain racial groups or
that they might encourage the perpetration of acts of genocide. It went
without saying that the United Kingdom would regard as unlawful and
would punish any activity on the part of an organization established on
its territory if such activity came within the scope of the acts enumerated
in article IV of the convention.
Mr. Morozov (Union of Soviet Socialist Republics) countered the
arguments advanced by the representatives of the United States and the
United Kingdom by saying that his proposal, far from being dangerous,
was designed to protect the most elementary human rights, the right to
life and the right to liberty.
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He expressed surprise that the domestic laws of certain States did not
empower them to disband organizations aimed at inciting to the perpetration
of genocide. States had no cause for alarm in respect to a provision
of the type proposed by the USSR delegation; only criminal organizations,
whose activities led to the commission of genocide, were likely to
be endangered by the provision.
Th e general obligation to punish genocide, which States would assume
in signing the convention, was not enough. History had shown that the
Nazi Party had existed long before crimes of genocide were committed;
it was permissible to assume that if the existence of that Party had not
been tolerated, the mass exterminations which had shaken the conscience
of the world would not have taken place.
Mr. Morozov urged the Committee to adopt the proposal submitted by
his delegation and thus to render the convention more eff ective.
Th e meeting rose at 6 p.m.
HUNDRED AND SIXTH MEETING
Held at the Palais de Chaillot, Paris, on Monday, 15 November 1948,
at 11.45 a.m.
Chairman: Mr. R.J. Alfaro (Panama).
55. Continuation of the consideration of the draft convention on
genocide [E/794]: report of the Economic and Social Council [A/633]
New article submitted by the USSR delegation (continued )
Th e Chairman invited members to continue the discussion on the USSR
proposal.
Mr. Khomousko (Byelorussian Soviet Socialist Republic), recalling that
the main purpose of the convention was to prevent the perpetration of
genocide, stressed the fact that the Soviet Union proposal was useful in
that regard since it was designed to prevent acts of genocide by making
their preparation impossible.
Recent history had shown that the horrible crimes committed by Hitlerite
Germany between 1939 and 1945 had been made possible only by the
Annex 12
Annex 13
UN General Assembly, Sixth Committee, Third Session, Genocide: Draft Convention and
Report of the Economic and Social Council,
Abtahi & Webb, The Genocide Convention. The Travaux Préparatoires
Th e Genocide Convention
Th e Travaux Préparatoires
By
Hirad Abtahi and Philippa Webb
Volume One
2008
Annex 13
Contents xv
A/C.6/245 ................................................................................. 1992
A/C.6/248 ................................................................................. 1993
A/C.6/248/Rev.1 ....................................................................... 1994
A/C.6/249 ................................................................................. 1994
A/C.6/251 ................................................................................. 1995
A/C.6/252 ................................................................................. 1996
A/C.6/256 ................................................................................. 1997
A/C.6/257 ................................................................................. 1999
A/C.6/258 ................................................................................. 2004
A/C.6/261 ................................................................................. 2004
A/C.6/264 ................................................................................. 2005
A/C.6/267 ................................................................................. 2005
A/C.6/269 ................................................................................. 2006
A/C.6/270 ................................................................................. 2008
A/C.6/273 ................................................................................. 2009
A/C.6/288 ................................................................................. 2010
A/C.6/289 & Corr.1 ................................................................. 2011
A/C.6/295 ................................................................................. 2017
A/C.6/299 ................................................................................. 2018
A/C.6/305 ................................................................................. 2019
A/C.6/310 ................................................................................. 2020
A/C.6/312 ................................................................................. 2021
A/760 ........................................................................................ 2022
A/760/Corr.2 ............................................................................ 2038
A/766 ........................................................................................ 2039
A/770 ........................................................................................ 2041
A/PV.178 .................................................................................. 2042
A/PV.179 .................................................................................. 2063
Convention on the Prevention and Punishment of the Crime
of Genocide .............................................................................. 2086
Complete List of Documents with Full Titles .......................... 2093
Index of Names ........................................................................ 2121
General Index ........................................................................... 2132
Annex 13
2022 A/760
United Nations Nations Unies UNRESTRICTED
GENERAL ASSEMBLEE A/760
ASSEMBLY GENERALE 3 December 1948
ORIGINAL: ENGLISH
Dual Distribution
Th ird session
GENOCIDE: DRAFT CONVENTION AND REPORT OF THE
ECONOMIC AND SOCIAL COUNCIL
Report of the Sixth Committee
Rapporteur: Mr. J. Spiropoulos (Greece)
1. In resolution 96(I) of 11 December 1946, the General Assembly, at
the second part of its fi rst session, affi rmed that genocide is a crime
under international law which the civilized world condemns. At the
same time the Assembly requested the Economic and Social Council
to undertake the necessary studies with a view to drawing up a draft
Convention on the crime of genocide to be submitted to the second
regular session of the General Assembly.
2. Th e Economic and Social Council, by resolution 47(IV) of 28 March
1947, instructed the Secretary-General to prepare, with the assistance
of experts, a draft Convention on the crime of genocide.
3. In accordance with this instruction, the Secretary-General prepared a
draft Convention which, on 7 July 1947, was transmitted to Member
Governments for their comments and which, together with the comments
received, was submitted to the second regular session of the
General Assembly.
4. By resolution 180(II) adopted on 21 November 1947, the General
Assembly, at its second session, reaffi rmed its former resolution on the
crime of genocide and requested the continuation of the work begun
by the Economic and Social Council concerning the suppression of
this crime, including the study of the draft Convention prepared by
the Secretariat.
5. Accordingly, the Economic and Social Council, at its sixth session,
established an ad hoc Committee, composed of the representatives of
seven Member States, to draw up a draft Convention on genocide for
consideration at the next session of the Council. Th e ad hoc Committee
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A/760 2023
met at the headquarters of the United Nations during the period
from 5 April to 10 May 1948 and prepared a report containing a
draft Convention on the prevention and punishment of the crime
of genocide (E/794).
6. At its seventh session, the Economic and Social Council decided,
by resolution 153(VII) of 26 August 1948, to transmit to the third
session of the General Assembly the report of the ad hoc Committee
and the draft Convention together with the records of the proceedings
of the Council at its seventh session on this subject (E/SR.180,
E/SR.201, E/SR.202, E/SR.218 and E/SR.219).
7. Th e General Assembly, at its 142nd plenary meeting held on 24
September 1948, decided to refer this matter to the Sixth Committee
for consideration and report.
8. At its 63rd meeting, held on 30 September 1948, the Sixth Committee
began the consideration of this item by a general discussion,
after which it decided (1) to examine, article by article, the text of
the draft Convention drawn up by the ad hoc Committee; (2) to
begin with article I, leaving the preamble to be discussed last of all;
and (3) to refer the decisions of the Committee with respect to the
various articles and the preamble to a drafting committee charged
with the preparation of a fi nal draft.
9. Th e text of the draft Convention prepared by the ad hoc Committee
was examined by the Sixth Committee from its 67th to 110th meetings,
held between 5 October and 9 November 1948. Th e text revised
by the Drafting Committee was examined by the Sixth Committee
from its 128th to 134th meetings, held between 29 November and
1 December 1948. Several articles, especially those of a substantive
character, gave rise to prolonged discussions and divergent opinions,
and a considerable number of amendments was submitted to the
Committee. In the present report, only those articles are referred to
which to a special degree retained the attention of the Committee.
10. In dealing with article II of the draft Convention, which defi nes the
acts of genocide, the Committee had, in particular, to resolve three
important problems. In the fi rst place, the question arose whether
the acts of genocide should be explicitly enumerated in the article, as
was done in the text prepared by the ad hoc Committee, or whether
a general defi nition of genocide should be adopted, as proposed in an
amendment submitted by the representative of France (A/C.6/211).
Th e Committee, at its 72nd meeting, decided on the principle of
Annex 13
2024 A/760
enumeration, the amendment submitted by the representative of
France having been withdrawn. Secondly, the question arose whether
political groups should be included in the groups to be protected by
the Convention, as proposed by the ad hoc Committee, or whether
these groups should be excluded from the article. At its 75th meeting,
the Committee decided to retain political groups, the vote being 29
in favour to 13 against, with 9 abstentions.* Th irdly, the question
arose whether, as motives of the acts of genocide, the Committee
should retain the words “on grounds of the national or racial origin,
religious belief, or political opinion of its members”, proposed by
the ad hoc Committee. Th is was settled when the Committee, at
its 77th meeting, by 27 votes to 22, with 2 abstentions, adopted an
amendment submitted by the representative of Venezuela (A/C.6/231)
whereby the phrase in question was deleted and the words “as such”
added after the word “group”, whereafter the fi rst part of article II
came to read as follows:
In this Convention genocide means any of the following acts committed
with the intent to destroy, in whole or in part, a national, [p. 3-para. 2-line
3] ethnical, racial or religious group as such:.
During the discussion of the various categories of acts constituting
genocide, the representative of China called the attention of the
Committee to the desirability of including acts of genocide committed
through the use of narcotics. Th is was made possible when the
Committee, at its 81st meeting, decided to insert in sub-paragraph 2
the words “or mental”, where by the text in question came to read:
“Causing serious bodily or mental harm to members of the group.”
At its 82nd meeting, the Committee adopted, by 20 votes to 13,
with 13 abstentions, an amendment submitted by the representative
of Greece (A/C.6/242) to include as point 5 in the acts of genocide
the act of forcibly transferring children from one group to another.
* Th is decision was later reversed: see paragraph 21, below.
11. Article III of the draft Convention, which dealt with “cultural” genocide,
gave rise to a discussion on the question whether this form of
genocide should be covered by the Convention. At its 83rd meeting
the Committee decided, by 25 votes to 16, with 4 abstentions, not to
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A/760 2025
include provisions relating to cultural genocide in the Convention. It
was pointed out, however, by several representatives that, in expressing
their views on the retention or suppression of article III, no position
was taken on the principle of cultural genocide, and that action to
protect against this form of genocide might more appropriately be
taken within the sphere of human rights.
12. With respect to article IV of the draft Convention, which listed
the diff erent acts to be punished, prolonged debates took place,
particularly on the question of the retention or suppression of subparagraph
(c) providing that “direct incitement in public or in private
to commit genocide shall be punishable whether such incitement be
successful or not”. At its 85th meeting, the Committee rejected, by
27 votes to 16, with 5 abstentions, an amendment submitted by the
representative of the United States of America (A/C.6/214 to delete
this sub-paragraph. On the other hand, the Committee decided at
the same meeting to delete both the words “in private” and the words
“whether such incitement be successful or not” from the original
text.*
* Th e representative of Sweden made the following statement with regard to article IV:
Th e discussion at the beginning of this meeting seems to me to have shown that
the signifi cance of the terms corresponding to the French and English expressions
here in question – incitement, conspiracy, attempt, complicity, etc. – is subject to
certain variations in many systems of criminal law represented here. When these
expressions have to be translated in order to introduce the text of the Convention
into our diff erent criminal codes in other languages, it will no doubt be necessary
to resign ourselves to the fact that certain diff erences in meaning are inevitable. It
would therefore be advisable to indicate in the Committee’s report that article IV of
the Convention does not bind signatory States to punish the various types of acts
to a greater extent than the corresponding acts aimed at the most serious crimes, as,
for example, murder and high treason, already recognized under national laws.
I will not enter here into the details of Swedish legislation which, moreover, does
not present too great diffi culties in this respect, but I fi nd it necessary to formulate,
somewhere, my reservation on this subject.
13. At its 92nd meeting, the Committee took up article V, dealing with
the authors of the crime of genocide. It examined in the fi rst place
the amendment submitted by the representative of the Union of
Soviet Socialist Republics (A/C.6/215/Rev.1) to add to this article
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2026 A/760
a second paragraph to read as follows: “Command of the law or
superior orders shall not justify genocide”. Th is amendment was
rejected by 28 votes to 15, with 6 abstentions. Th e Committee then
discussed the terminology to be used in order to describe adequately
the authors of the crime of genocide. Whereas the expression used
in the original French text, “des gouvernants, des fonctionnaires ou
des particuliers”, was found satisfactory and consequently retained
by the Committee, it was pointed out by several representatives that
the expression “Heads of State” used in the English text went beyond
the French expression “gouvernants” as it would appear to include
Heads of State of constitutional monarchies who, according to the
Constitution of their country, enjoyed immunity and could not, for
that reason, be brought to trial before a national court. At its 95th
meeting the Committee therefore adopted, by 31 votes to 1, with 11
abstentions, an amendment submitted by the representative of the
Netherlands (A/C.6/253) and amended by the representative of Siam,
whereby the English text came to read “constitutionally responsible
rulers, public offi cials or private individuals”.* Finally, the Committee
rejected, at its 96th meeting, an amendment submitted by the
representative of Syria (A/C.6/246) which would have included in
the article as authors of genocide also de facto Heads of State and
persons having usurped authority. It was felt that such persons already
came within the scope of article V.
* Th e following statement was made by the representative of Sweden with regard to the
question of responsibility of Members of Parliament: “I must point out that the discussion
that has taken place has in no way clarifi ed the position of Members of Parliament
under the article we have just adopted. Th is question raised by the Swedish delegation
consequently remains unanswered. For our part, we conclude that no absolute obligation
could be imposed by article V in this regard.”
14. Article VII of the draft Convention provoked a lengthy discussion.
As drafted by the ad hoc Committee, this article provided that persons
charged with genocide should be tried by a competent tribunal
of the State in the territory of which the act was committed or by
a competent international tribunal. At its 98th meeting the Committee,
by 23 votes to 19, with 3 abstentions, decided to delete the
reference in the text to trial before an international tribunal.** On
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A/760 2027
the other hand, the Committee, at its 99th meeting, adopted a joint
draft resolution submitted by the representatives of the Netherlands
and Iran (resolution B), by which resolution the International Law
Commission is invited to study the desirability and possibility of
establishing an international judicial organ for the trial of persons
charged with genocide or other crimes over which jurisdiction would
be conferred upon that organ by international conventions.
** Article VII, which became article VI in the fi nal text, was later revised by the Committee:
see paragraph 22 below.
15. In article X of the draft Convention as drafted by the ad hoc Committee,
it was laid down that disputes relating to the interpretation
or application of the Convention should be submitted to the
International Court of Justice, provided that no dispute should be
submitted to the Court involving an issue which had been referred
to and was pending before, or had been passed upon by, a competent
international criminal tribunal. At its 104th meeting the Committee
adopted, however, in substitution for this article, a joint amendment
submitted by the representatives of the United Kingdom and Belgium
(A/C.6/258), and amended by the representative of India, according
to which any dispute between the Contracting Parties relating to the
interpretation, application or fulfi lment of the Convention, including
disputes relating to the responsibility of a State for any of the acts
enumerated in articles II and IV, should be submitted to the International
Court of Justice, at the request of any of the Contracting
Parties.
At its 105th meeting, the Committee adopted, as the second paragraph
of article X,* an amendment submitted by the representative
of Australia (A/C.6/265) providing that, with respect to the prevention
and suppression of acts of genocide, a party to the Convention
may call upon any competent organ of the United Nations to take
such action as may be appropriate under the Charter of the United
Nations.
* By the rearrangement and renumbering of the articles decided upon by the Drafting
Committee, the second paragraph of article X became article VIII of the fi nal text.
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16. A new article dealing with the application of the Convention to
dependent territories was proposed by the representative of the
United Kingdom as well as by the representative of the Ukrainian
Soviet Socialist Republic. Th e amendment of the United Kingdom
(A/C.6/236) provided that the application of the Convention might,
by a notifi cation to the Secretary-General, be extended to all or
any of the territories for the conduct of whose foreign relations the
Party in question is responsible. Th e amendment of the Ukrainian
Soviet Socialist Republic (A/C.6/264) provided that the Convention
should apply equally to the territory of the Contracting Parties and
to all territories in regard to which they perform the functions of
the governing and administering authority (including Trust and other
Non-Self-Governing Territories). At its 107th meeting, the Committee
rejected the Ukrainian amendment by 19 votes to 10, with 14
abstentions, but adopted the United Kingdom amendment by 18
votes to 9, with 14 abstentions. Th e Committee also adopted, at its
108th meeting, a draft resolution presented by the representative of
Iran (resolution C), recommending Members of the United Nations
administering dependent territories to take such measures as are
necessary and feasible to enable the provisions of the Convention to
be extended to those territories as soon as possible.
17. After having disposed of the Final Clauses in the draft Convention of
the ad hoc Committee (articles XI–XIX) the Committee, at its 110th
meeting, took up the question of the preamble of the Convention
and adopted, by 38 votes to 9, with 5 abstentions, a text proposed
by the representative of Venezuela (A/C.6/261).
18. At its 104th meeting, hold on 13 November 1948, the Sixth Committee
appointed a Drafting Committee consisting of the representatives
of Belgium, China, Cuba, Egypt, France, Poland, Union of Soviet
Socialist Republics, United Kingdom, and United States of America.
Th e membership of the Committee was later increased from nine to
thirteen by the addition of the representatives of Australia, Brazil,
Czechoslovakia and Iran. As the representative of Cuba was unable
to take part in the work, the Committee appointed the representative
of Uruguay to take his place. To the Drafting Committee were
referred the text of the articles of the draft Convention, the preamble,
and the two resolutions dealing with the study of the question of an
international jurisdiction and with the application of the Convention
on genocide with respect to dependent territories.
Annex 13
A/760 2029
19. Th e Drafting Committee submitted, on 23 November 1948, its report
to the Sixth Committee (A/C.6/288). In this report the Drafting
Committee recommended to the Sixth Committee the adoption of
three draft resolutions: (A) a draft resolution recommending the adoption
by the General Assembly of the draft Convention on genocide;
(B) a draft resolution dealing with the study by the International Law
Commission of the question of an international criminal jurisdiction
(A/C.6/271); (C) a draft resolution dealing with the application of
the Convention on genocide with respect to dependent territories
(A/C.6/272).
20. Th e report of the Drafting Committee and the revised texts submitted
by it were considered by the Sixth Committee from its 128th
to its 134th meetings. Amendments to the revised text of the draft
Convention were submitted by the representatives of the United States
of America (articles III and VI, A/C.6/295) and India (articles II, VI,
IX and XVII, A/C.6/299). Also, a joint amendment was introduced
by the representatives of Belgium, United Kingdom and United
States of America (article IX, A/C.6/305). In addition, several verbal
amendments were made to the articles to which formal amendments
had been presented.
21. At the 128th meeting of the Committee, a proposal was made by the
representatives of Egypt, Iran and Uruguay to re-examine the question
of excluding “political groups” in article II of the Convention.
Having heard a statement by the representative of the United States
of America in favour of such exclusion, the Committee decided by a
two-thirds majority vote of 26 to 4, with 9 abstentions, to reconsider
this question. Following this, the Committee, by a second vote of 22
to 6, with 12 abstentions, decided to exclude political groups from
the groups protected by article II.
22. A redrafting of article VI, dealing with the question of jurisdiction,
was discussed during the 129th and 130th meetings of the Committee.
Th e Committee decided fi rst by a two-thirds majority of 33
to 9, with 6 abstentions, to reconsider the article. It adopted next,
by 29 votes to 9, with 5 abstentions, a revised text of the United
States amendment to article VI, submitted by the representative of
France and drawn up in consultation with the representatives of
Belgium, France and the United States of America. By this text the
following words were added at the end of article VI: “or by such
international penal tribunal as may have jurisdiction with respect to
Annex 13
2030 A/760
such Contracting Parties as shall have accepted the jurisdiction of
such tribunal.”
23. At its 133rd meeting the Committee proceeded to vote on the three
draft resolutions contained in document A/C.6/289. By 30 votes to
none, with 8 abstentions, the Committee adopted draft resolution A
with the annexed draft Convention as amended by the Committee.
By 27 votes to 5, with 6 abstentions, the Committee adopted draft
resolution B. Finally, the Committee, by 29 votes to none, with 7
abstentions, adopted draft resolution C.
24. At its 131st meeting, the Committee had agreed to insert in its report
to the General Assembly the substance of an amendment to article
VI submitted by the representative of India, according to which
nothing in the article should aff ect the right of any State to bring to
trial before its own tribunals any of its nationals for acts committed
outside the State. Following this, the representative of Sweden had
requested that the report should also indicate that article VI did not
deprive a State of jurisdiction in the case of crimes committed against
its nationals outside national territory. After some discussion of the
questions raised in this connexion, the Committee, at its 134th meeting,
adopted, by 20 votes to 8, with 6 abstentions, an explanatory
text* for insertion in the present report.**
* Th e text reads as follows:
Th e fi rst part of article VI contemplates the obligation of the State in whose
territory acts of genocide have been committed. Th us, in particular, it does not
aff ect the right of any State to bring to trial before its own tribunals any of its
nationals for acts committed outside the State.
** For reservations made by some representatives with respect to the draft Convention,
see the summary records of the 132nd and 133rd meetings of the Committee.
25. Th e Committee therefore recommends for adoption by the General
Assembly the following three resolutions:
Annex 13
Annex 14
UN General Assembly, 178th Plenary Meeting, Draft convention on genocide: reports of the Economic
and Social Council and of the Sixth Committee, A/PV.178 (9 December 1948),
reproduced in Abtahi & Webb, The Genocide Convention: The Travaux Préparatoires
(Martinus Nijhoff 2008)
Th e Genocide Convention
Th e Travaux Préparatoires
By
Hirad Abtahi and Philippa Webb
Volume One
2008
Annex 14
Contents xv
A/C.6/245 ................................................................................. 1992
A/C.6/248 ................................................................................. 1993
A/C.6/248/Rev.1 ....................................................................... 1994
A/C.6/249 ................................................................................. 1994
A/C.6/251 ................................................................................. 1995
A/C.6/252 ................................................................................. 1996
A/C.6/256 ................................................................................. 1997
A/C.6/257 ................................................................................. 1999
A/C.6/258 ................................................................................. 2004
A/C.6/261 ................................................................................. 2004
A/C.6/264 ................................................................................. 2005
A/C.6/267 ................................................................................. 2005
A/C.6/269 ................................................................................. 2006
A/C.6/270 ................................................................................. 2008
A/C.6/273 ................................................................................. 2009
A/C.6/288 ................................................................................. 2010
A/C.6/289 & Corr.1 ................................................................. 2011
A/C.6/295 ................................................................................. 2017
A/C.6/299 ................................................................................. 2018
A/C.6/305 ................................................................................. 2019
A/C.6/310 ................................................................................. 2020
A/C.6/312 ................................................................................. 2021
A/760 ........................................................................................ 2022
A/760/Corr.2 ............................................................................ 2038
A/766 ........................................................................................ 2039
A/770 ........................................................................................ 2041
A/PV.178 .................................................................................. 2042
A/PV.179 .................................................................................. 2063
Convention on the Prevention and Punishment of the Crime
of Genocide .............................................................................. 2086
Complete List of Documents with Full Titles .......................... 2093
Index of Names ........................................................................ 2121
General Index ........................................................................... 2132
Annex 14
2042 A/PV.178
HUNDRED AND SEVENTY-EIGHTH PLENARY MEETING
Held at the Palais de Chaillot, Paris, on Th ursday, 9 December, 1948,
at 10.55 a.m.
President: Mr. H.V. Evatt (Australia).
114. Draft convention on genocide: reports of the Economic and Social
Council and of the Sixth Committee (A/760 and A/760/Corr.2)
Amendments proposed by the Union of Soviet Socialist Republics
to the draft convention proposed by the Sixth Committee (A/766)
and amendment proposed by Venezuela (A/770)
Mr. Spiropoulos (Greece), Rapporteur, presented the report of the Sixth
Committee and the accompanying draft resolutions. Surveying the history
of genocide, he recalled that it had during the past two years been
debated by the General Assembly, the Economic and Social Council, the
ad hoc Committee set up by the latter, and fi nally by the Sixth Committee.
In its resolution 96(I) of 11 December 1946, the General Assembly
had solemnly affi rmed that genocide was a crime against human rights.
Th e Sixth Committee had shown itself fully aware of the gravity of the
matter, since it had devoted most of its work to that item during the
present session. Mr. Spiropoulos expressed the hope that once the convention
had come into force it would do good service to humanity, for
it appealed for international co-operation in the elimination of a scourge
which had existed not only in present times, but also throughout the
history of mankind.
Mr. Spiropoulos read the three draft resolutions A, B and C relating to
genocide, which had been adopted by the Sixth Committee. Th e fi rst concerned
the adoption of the Convention on genocide; it defi ned the crime
of genocide and set forth measures for its prevention and punishment,
designated tribunals competent to judge the crime and fi nally dealt with
the means of enforcing the convention on genocide. Th e second resolution
concerned the study by the International Law Commission of the question
of an international penal court for the trial of persons charged with
genocide. Finally, the third resolution concerned the application of the
convention for the prevention and punishment of the crime of genocide
in Non-Self-Governing Territories.
Annex 14
A/PV.178 2043
Mr. Morozov (Union of Soviet Socialist Republics) stressed that one of the
worst crimes committed during the late war had been the organized mass
destruction of racial and national groups, directed towards the complete
elimination of certain races which had sprung up in the course of history.
More than 12 million people had fallen victims to that abominable
crime, not counting the victims of Japanese imperialism. It had aroused
the indignation of all the civilized peoples of the world, and the United
Nations had set itself the task of preventing it, and of ensuring that in
future anyone guilty of such a crime should be punished.
Th e draft convention on genocide now before the Assembly was the
outcome of work undertaken from the beginning of the fi rst session of
the General Assembly in 1946. From then onwards, the USSR delegation,
aware of the special importance of the campaign against genocide,
had submitted to the ad hoc Committee on genocide a series of proposals1,
some of which had been singled out for consideration and were
now incorporated in the draft convention at present before the General
Assembly. Th us the defi nition of genocide, the decision to punish acts
of genocide, conspiracy to commit genocide, incitement to genocide and
complicity in the crime were mentioned in the USSR proposal, as well
as the punishment of the guilty parties, irrespective of status, an invitation
to the States to provide the necessary measures to punish the crime
of genocide in their national legislation, and the arrangements whereby
the culprits could be brought before the courts of law of the countries in
which the crimes of genocide were committed. Finally, it was thanks to
a USSR proposal that the convention provided that the signatory States
might appeal to the competent organs of the United Nations so that the
necessary steps might be taken to ensure the prevention and punishment
of acts of genocide.
1 See Offi cial Records of the Economic and Social Council. Th ird Year, Seventh Session,
Supplement No. 6.
Nevertheless, the convention was not perfect, and the USSR delegation,
aware that its country had had to bear the brunt of the struggle against the
forces of fascism, considered itself entitled to point out the shortcomings
of the convention, which detracted from its signifi cance. To remedy those
shortcomings, the USSR delegation had submitted various amendments
Annex 14
2044 A/PV.178
(A/C.6/215/Rev. 1) which unfortunately had not met with the approval of
the members of the Sixth Committee. Th e USSR delegation had therefore
found it necessary to place them before the General Assembly.
Th e USSR amendment to the preamble to the convention was intended
to widen the defi nition of genocide. It was not suffi cient to state that
genocide had infl icted enormous losses upon humanity. It should also be
pointed out that there was a connexion between genocide and the racial
theories intended to develop racial and national hatreds, the domination
of the so-called “higher races” and the extermination of the so-called
“lower races”. Th e crime of genocide formed an integral part of the plan
for world domination of the supporters of racial ideologies. Mr. Morozov
quoted some examples of the crime, based on the records of the Nurnberg
Tribunal. All those quotations showed that the mass extermination of Slav
or Jewish populations formed part of a plan the implementation of which
was made possible by an intensive propaganda campaign for the enslavement
or destruction of races regarded as inferior. Th at propaganda was
responsible for millions of deaths in Eastern Europe as well as in other
countries, particularly France.
Mr. Morozov expressed his astonishment that, while the General Assembly
was being held in the very heart of France, some delegations, especially
that of the United States, should nevertheless have raised objections to
the organic connexion between fascism and racial theories and genocide
being emphasized in the convention on genocide. Should the General
Assembly accept that view, it would by that very fact demonstrate its refusal
to condemn racial theories, or to admit that those theories inevitably led
to genocide. It was clear that such theories were incompatible with the
principles of the Charter. To say that the crime of genocide had no connexion
with racial theories amounted, in fact, to a re-instatement of such
theories. Th e USSR delegation strongly objected to such an attempt.
Th e Sixth Committee had also rejected, at its 107th meeting, the USSR’s
amendment requesting the signatory States to disband organizations whose
aim was to incite racial or national hatred, and in future not to tolerate
the existence of such organizations. Unless some such provision were
adopted, it was clear that genocide might recur. Several delegations had
opposed the amendment on the ground that it was in contradiction with
the freedoms guaranteed by the Constitutions of a number of countries.
Mr. Morozov wished to point out the dangers inherent in that attitude,
Annex 14
A/PV.178 2045
and observed that it would give rise to a situation permitting criminals
full freedom of action, which was the more inadmissible when the crime
under consideration was genocide.
Mr. Morozov next recalled the tenor of another USSR amendment dealing
with the crime of cultural genocide, which was defi ned as the sum total
of premeditated action to destroy the religion, culture, or language of a
national, racial or religious group. It included, for example, such acts as
prohibiting the use of a national language and the publication of books
or newspapers in that language, the destruction of libraries, museums,
schools, places of worship, and, generally speaking, the destruction of
every building serving a cultural purpose. Even the delegations which
had opposed that amendment had agreed that such acts should be suppressed,
but they had claimed that they had no connexion with genocide
and that they should be considered in connexion with the discussion of
the rights of minorities. Th e delegation of the USSR could not agree with
that view, for it regarded cultural genocide as an aspect of genocide, i. e.
a premeditated act aimed at the destruction of a group of human beings.
Mr. Morozov feared that unless some provision regarding cultural genocide
were included in the convention, some rulers who oppressed minorities
might take advantage of its absence to justify crimes of genocide.
Th e Venezuelan delegation had considered that aspect of the question
and had proposed an amendment, which was, however, more limited in
scope than that of the USSR and did not deal fully with the question.
In addition, the term “systematic” was ambiguous. Mr. Morozov feared
that it might enable certain criminals to evade their just punishment by
giving them the opportunity to maintain that the destruction they had
carried out was not systematic. For those reasons, the USSR delegation
abided by the wording of its own amendment.
Mr. Morozov then drew attention to another shortcoming in the Convention:
its application in Non-Self-Governing Territories was left to the
discretion of the administering Powers. True, there was a resolution inviting
those Powers to extend the application of the convention to the territories
at the earliest opportunity; but the resolution was inadequate and for
that reason the USSR delegation proposed that is should be replaced by
a defi nite clause stipulating that the convention should apply not only
to the signatory States, but also to territories under their administration
including all Trust Territories and Non-Self-Governing Territories.
Annex 14
2046 A/PV.178
During the discussion in the Sixth Committee1 the representative of the
United Kingdom had objected to such a provision on the plea that it
would represent interference on the part of the metropolitan Powers in
local government activities. In the opinion of the USSR delegation, the
reason why the colonial Powers had pressed so strongly for the omission
of such a clause, which incidentally appeared in many other conventions,
was because they intended to have a free hand to ensure that colonial territories
were maintained in a position of inferiority. Th at was contrary to
the principles of the Charter and therefore the USSR delegation pressed
for the adoption of its amendment.
1 See Offi cial records of the third session of the General Assembly, Sixth Committee, 107th
meeting.
Th e last amendment proposed by the USSR delegation dealt with article VI
of the convention. Th e delegation agreed with the fi rst part of the article,
in which it was stated that those guilty of crimes of genocide should be
arraigned before the relevant court of justice of the State in whose territory
the crimes had been committed. It was unable, however, to accept the
second part of the article, by the terms of which such criminals could be
tried by an international criminal court. Th at second provision limited the
action Governments might take for the punishment of genocide. Moreover,
the establishment of such an international court would be equivalent to
interference in the domestic aff airs of States, thus infringing upon their
sovereignty, which was contrary to paragraph 7 of Article 2 of the Charter.
For those reasons, the USSR delegation requested that the second part of
article VI of the convention should be deleted.
For the same reasons it objected to the draft resolution of the Sixth
Committee requesting the International Law Commission to consider
the question of an international criminal jurisdiction and the establishment
of an international criminal court with powers to judge questions
connected with genocide.
In conclusion, Mr. Morozov emphasized that consideration of the amendments
submitted by the USSR showed that they were directed towards
ensuring the most eff ective results in the work undertaken by the United
Nations for the prevention and punishment of the crime of genocide.
He asked the General Assembly to adopt the amendments, which would
Annex 14
A/PV.178 2047
make possible a more effi cient campaign against genocide, the most horrible
of all crimes.
Mr. Peréz Perozo (Venezuela) recalled that the former article III of
the draft convention which had now become article II had been studied
with particular attention by the Sixth Committee. Th e question had been
whether the Convention would cover cultural genocide.
Th e Sixth Committee had not succeeded in fi nding a very satisfactory
phrasing for article III. Th e article had been made up of very varied elements
and had, moreover, been couched in terms likely to cause confusion.
In such circumstances, some of the signatory States might subsequently
have had to face serious diffi culties. Th e Venezuelan delegation, for one,
had had great hesitation in accepting that part of article III which had
prohibited any ban on a group using its own language. Countries whose
population was composed of immigrants, and for which the defence of
their national language was a vital necessity, had felt similar doubts. Moreover,
some of the provisions of that article belonged rather to the fi eld
of freedom of information or protection of minorities. Th e Venezuelan
delegation shared the reservations of other delegations concerning those
provisions and believed, furthermore, that such a vital problem should
not be treated hastily if the groups enumerated in the convention were
to be protected against all forms of genocide.
Th e General Assembly resolution 96(I) had stressed the fact that genocide
resulted in great loss to the cultural and spiritual life of humanity.
Th ere had been a desire to punish all forms of the crime of genocide, not
merely its physical aspect. A human group might, however, be destroyed
not only by the physical extermination of its members, but also by acts
which prevented it from maintaining its communal existence even if its
members continued to exist physically. Th us the destruction of the place
of worship of a religious group deprived that group of its reason for
existence and led to its disappearance.
Mr. Pérez Perozo asked the Assembly to give full consideration to his
delegation’s amendment and to adopt it. Th e Venezuelan amendment was
very simple: it retained three of the factors in the original article III and
deleted all those which might lead to confusion. Th ose three factors were:
religious edifi ces, schools and libraries of the group. Th e word “systematic”,
which had been criticized by the representative of the USSR, had been
Annex 14
2048 A/PV.178
purposely chosen in order to emphasize that not only isolated cases were
envisaged, but cases of collective violence carried out on a deliberate plan
aimed at destruction.
Th e amendment was the result of detailed study which had led to the
conclusion that racial or religious hatred had always begun to show itself
in the form of cultural genocide before it assumed the bloody aspect of
mass murder. Such conclusions were of vital importance if the preventive
nature of the convention were to be stressed.
Th e problem of cultural genocide was diff erent from that of the protection
of minorities. No legislation could refuse to take steps to condemn such
atrocious crimes, which outraged the conscience of humanity. It was wrong
to say that acts directed towards destruction of that kind were covered by
existing legislation; that was true only of the criminal acts mentioned in
articles II and III of the convention. Moreover, by recommending that a
convention on genocide should be drawn up, the General Assembly had
wished to draw attention to a new category of crimes, and had laid particular
stress on the infamy of such crimes in order the better to ensure
their prevention.
If the General Assembly refused to include in article III the factors mentioned
in the Venezuelan amendment, it would disappoint the hopes of
some delegations who wished to condemn all forms of genocide and, in
particular, cultural genocide. Mr. Pérez Perozo recalled that at the beginning
of the Committee’s work, the Venezuelan delegation had received
a message from Buenos Aires requesting it to insist that the convention
should include a provision for the protection of religious edifi ces without
distinction with regard to sect. Th at appeal refl ected the true feelings of
religious believers, and the Venezuelan delegation had been unable to
ignore it.
Mr. Pérez Perozo pointed out that logically the Venezuelan amendment
should go after the sub-paragraph on “forcibly transferring children of
the group to another group”. Th e forcible transfer of children was not
physical genocide because the children were not destroyed but were torn
from one group and incorporated in another. Th e amendment submitted
by the Venezuelan delegation should, then, be inserted after sub-paragraph
(e) in the form of a sub-paragraph ( f ).
Annex 14
A/PV.178 2049
Finally, Mr. Perez Perozo appealed to the General Assembly to accept
his delegation’s amendment, thus fi lling a gap which the Committee had
left in the convention on genocide showing the world that it had not
been unmindful of the highest interests of culture and had, been anxious
to censure the protection of the religious sentiments of the whole
of humanity.
Mrs. Ikramullah (Pakistan), after expressing her great satisfaction at the
completion of the draft convention on the prevention and punishment
of genocide, emphasized the contribution that had been made to the
work by a number of countries, including the Latin-American countries
and Egypt.
She expressed her regret however, that no mention had been made of
crimes committed against the culture of a people or of a human group.
It must be realized that very often a people did not diff er from its neighbours
by its racial characteristics but by its spiritual heritage. To deprive
a human group of its separate culture could thus destroy its individuality
as completely as physical annihilation. Moreover, those guilty of the crime
of mass extermination committed that crime because the existence of a
community endowed with a separate cultural life was intolerable to them.
In other words, physical genocide was only the means; the end was the
destruction of a people’s spiritual individuality.
To safeguard the physical existence of a group human beings was a considerable
achievement from a humanitarian point of view. But the mere
physical existence of a group was of little value from the point of view of
humanity, for a group deprived of the living springs of the spirit was only
a body without a soul, unable to make any contribution to the world’s
heritage of art and science. It was an accepted principle that diversity of
spiritual endowments was of great value to the human race and that every
eff ort should be made to safeguard it.
It was obvious that the convention on genocide could not be restricted to
safeguarding the physical existence of human groups, because Resolution
96(I) had declared that “denial of the right of existence of entire human
groups . . . results in great losses to humanity in the form of cultural and
other contributions represented by these human groups and is contrary
to moral law and to the spirit and aims of the United Nations”. It was
clear that the resolution defi nitely envisaged the prevention of genocide
in the cultural world, as in other fi elds.
Annex 14
2050 A/PV.178
Th e Pakistan delegation recognized that the fi nal text of article III1 had provided
too wide a defi nition of cultural genocide and that it could therefore
have been diffi cult to bring the off ences enumerated in it before the courts.
Th e delegation had, therefore, submitted2 an amendment (A/C.6/229)
which narrowed cultural genocide to two specifi c crimes – forcible mass
conversion of persons and the destruction of religious edifi ces.
1 See Offi cial Records of the Economic and Social Council, Th ird Year, Seventh Session,
Supplement No. 6, page 6.
2 See Offi cial Records of the third session of the General Assembly, Sixth Committee, 83rd
meeting.
It had been argued that such acts, heinous though they might be, were
not so outrageous as physical genocide. It might be that some people
regarded the destruction of religious edifi ces as a thing of little importance,
but, for the majority of Eastern peoples, such an act was a matter
of grave concern. In that part of the world, a far greater value was placed
upon things of the spirit than upon mere material existence. Religious
monuments were a source of inspiration to those peoples and a symbol
of their spiritual personality.
It was regrettable that the peoples who had most enriched world culture
belonged, in general, to small groups, and were in most cases, of no
political importance. As they could not defend their spiritual heritage by
force of arms, they were obliged to appeal to the community of nations
to preserve that precious heritage.
Of the two amendments submitted to the Assembly, the Pakistan delegation
preferred that of the USSR. It hoped, however, that if the Assembly
did not accept that amendment on account of its very broad scope, it
would adopt the Venezuelan amendment. Th e criminal nature of cultural
genocide having thus been recognized, there would be an opportunity to
improve the convention in respect to that point, later on.
Th e Pakistan representative wished to reassure all those who feared that
such a provision would prove to be an obstacle to the normal process of
assimilation into the national community. Th ere was no question of that,
but rather of the forcible and systematic suppression of a national culture,
which could not be covered by the euphemistic term of assimilation.
Annex 14
A/PV.178 2051
It had also been suggested that the problem should be dealt with either
in the declaration of human rights or in a possible charter on the protection
of minorities. Such a view showed a complete failure to understand
the real aim of the convention on genocide. Th e convention was not
designed to proclaim rights but to punish certain crimes. Th e purpose of
the original text of article III was, in fact, to defi ne a category of acts of
violence and destruction which were undeniably criminal.
It seemed that at a certain stage of the discussion, the moral aspect of the
problem had been overlooked in a welter of legal considerations. It was
undoubtedly true that great legal diffi culties were involved in the question
of genocide. Once the gravity and heinousness of the crime of genocide
had been recognized, however, eff orts must be made to fi nd a legal means
of preventing it, and the diffi culties which existed under the present legal
systems must not be allowed to impede progress.
Th e Pakistan representative was gratifi ed to note that the Sixth Committee
had recommended the establishment of an international criminal
court and a preliminary study of that matter by the International Law
Commission.
Th e crime of genocide was no novelty. While it had always shocked the
conscience of mankind nothing had ever been done to punish it. Scientifi c
discoveries had made it possible for man to perpetrate the crime on a
vast scale. It was therefore all the more urgent that the convention on the
prevention and punishment of genocide should be adopted. Th e Pakistan
representative hoped that all Member States would sign the convention
and would see that it was applied.
Mr. Gross (United States of America) said that the unanimous vote of
the General Assembly on Resolution 96(I) of 11 December 1946 refl ected
determination to ensure that the barbarous acts which had shocked the
conscience of mankind in the preceding years would never again be
repeated.
In a brief survey of the history of the preparation of the draft convention
on the prevention and punishment of genocide, Mr. Gross drew attention
to the important contribution that the current President of the General
Assembly had made to the arduous and patient work involved. Th e draft
convention was not perfect. Each delegation undoubtedly had the right
Annex 14
2052 A/PV.178
to present amendments during the plenary meeting and, as the President
had said, it was the obligation of other Members to give such proposals
their earnest consideration. He could not, however, help regretting that
the USSR delegation had deemed it wise to propose a series of amendments
to the Assembly, while it had objected to the motions to re-open
discussions in the Sixth Committee. At the request of other delegations,
among them the United States delegation, the Committee had reopened
the debate in regard to certain clauses of the draft convention and had
adopted some amendments during the last stages of its work. Th e USSR
delegation, however, had not given the members of the Committee the
opportunity to re-open the discussion on the amendments which it
intended to propose again to the plenary meeting.
When the matter had been discussed at the 110th meeting of the Committee,
only seven countries had supported the USSR amendment to the
preamble, while 36 delegations, including that of the United States, had
opposed it. Th e reason for that opposition was that the amendment in
question would have a limiting eff ect on Convention, in that it declared
genocide to be organically linked to certain doctrines. Th e Nürnberg tribunal
had certainly recognized the organic link, but it had been concerned
only with crimes committed during the last world war or during the period
of preparation for the war. Th e Convention on genocide, however, should
be applicable to all situations, in time of peace as in times of war.
Gross agreed that it was diffi cult to reply to the eloquent arguments of
the representatives of the USSR, Venezuela and Pakistan on the subject
of cultural genocide. Nevertheless, he did not think the character of the
convention could be broadened in that way. Resolution 96(I) of the
General Assembly defi ned the crime of genocide as the destruction of
entire human groups, in contrast with homicide, which was the physical
destruction of an individual. However barbarous and unpardonable
it might be, the destruction of a church, a library or a school was in an
entirely diff erent category. Th at was a problem that concerned the fundamental
human rights of the individual.
Th e USSR amendment was to add an article which would place among
crimes punishable by international law such acts as the prohibition of
the use of a certain language in schools or in daily intercourse, as also in
publications. Th e amendment was not, however, designed to guarantee
the free expression of thought, irrespective of the language employed. Th at
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A/PV.178 2053
demonstrated how diffi cult it was to enter upon the fi eld of fundamental
human freedoms within the framework of the convention.
With regard to article VI, the USSR was opposed to the idea of the
establishment of an international criminal court. In that connexion, it was
suffi cient to point out that the crimes with which the draft convention
dealt could be perpetrated by a State, or by individuals who might be
the representatives or agents of a State. If the punishment of such crimes
was left to the State in question, the convention on genocide would be
in the nature of a fraud.
Th e United States representative paid a tribute to the countries which had
originally sponsored the convention, namely: Cuba, Panama and India,1
as also to Mr. Alfaro, the Chairman of the Sixth Committee, Prince Wan
Waithayakon, the Vice-Chairman, and Mr. Spiropoulos, the Rapporteur.
Th e eff orts of all those who had taken part in the work had resulted in the
production of a draft convention which, once adopted, would constitute
a milestone in the progress of international law.
1 See Offi cial Records of the second part of the fi rst session of the General Assembly. Sixth
Committee, annex 15, page 242.
Mr. Dignam (Australia) urgently requested the delegations to vote
unanimously for the Sixth Committee’s report, and thus give proof of
the collective will of the Assembly to prevent and abolish the abominable
crime of genocide.
Recalling the various phases through which the preparation of the draft
Convention had passed, Mr. Dignam quoted the appeal made by Mr.
Evatt at the 218th meeting of the Economic and Social Council in
August 1948 that the draft should be submitted to the third session of
the General Assembly. Th e representative of Australia paid tribute to all
those who had contributed to the preparation of the draft convention,
which represented the widest basis for understanding which was now to
be found on the subject.
While full of sympathy for the peoples who had suff ered directly from
aggression and who wished the convention to cover as much ground as
possible, Mr. Dignam considered that it was above all important to have
a unanimous vote for a draft, the contents of which were acceptable to
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all. By re-examining the draft convention later, it might be possible to
amend it usefully, but at all costs the crime of genocide must be fought
without delay. If the Assembly waited, in an endeavour to give entire
satisfaction to the arguments of each one of the 58 Member States, that
would be tantamount to postponing the completion of the instrument
indefi nitely.
Th e representative of Australia begged the delegations which had raised
objections to certain points in the draft not to abstain from voting on
the whole. Unanimous agreement could thus be reached on that very
important instrument. He did not think that any Member State should
be prevented by legal considerations from signing and ratifying the convention
and putting it into operation.
Genocide was such a vile act that even savages and wild beasts were
incapable of committing it. War-toughened soldiers had been struck with
horror at the sight of the victims of genocide who were still alive. It was
neither a crime of passion nor a vicious crime. In view of its indescribable
character and the impossibility of justifying it in any way, it would
be of value to re-affi rm solemnly the two resolutions 96(I) and 180(II)
that the General Assembly had adopted on the subject.
For the benefi t of future generations, the Assembly should place on record
the horror it felt at the inhuman and diabolical crimes which had been
committed in recent times. It was to be hoped that it would never be
necessary to invoke the provisions of the convention. Th e fact that the
present generation had resolved to prevent such abominable practices
must, however, be recorded in history.
Although the decisions of the international military tribunals of Nürneberg
and Tokyo had served as a basis for the draft convention, Mr. Dignam
felt that the convention should not be limited to a denunciation of the
terrible crimes committed in the name of fascism and nazism. It was right
that article I should state that the convention was applicable in peace-time
as well as in war-time.
Th e Australian representative approved the wording of article VI, as also
draft resolution B in the Sixth Committee’s report which referred to the
setting up of an international criminal Court. His country had always
maintained that guarantees of human rights or fundamental freedoms
were meaningless, whether written into a peace treaty or an international
Annex 14
A/PV.178 2055
convention, unless machinery was provided for their implementation. Th at
was all the more true in the case of genocide, for history showed that the
author of that crime was often the government of a State.
Article VIII gave every contracting party the right to invoke the competent
organs of the United Nations. Just as the most humble citizen of a
national community had the right to appeal to the supreme legislative and
judicial organs of his country, so the smallest States that were victims of
injustice should be given the right to have their grievances examined by
the competent organs of the United Nations.
Th e signing of that convention would be an act of reparation to the innumerable
victims of genocide, and at the same time a solemn guarantee
that such bloodthirsty deeds would never again be repeated.
Mr. Abdoh (Iran) recalled that since the beginning of the Committee’s
work the Iranian delegation had warmly supported the initiative taken by
certain delegations in preparing an international draft convention for the
suppression and punishment of the crime of genocide. It had collaborated
in the preparation of that convention and had submitted, among others,
the compromise proposals (A/C.6/218) appearing in draft resolutions B
and C submitted to the Assembly.
Genocide was not only the most odious crime which could be committed
against the human race; it might also give rise to future wars. It was for
that reason that the Iranian delegation expressed satisfaction not only at
the fact that the Sixth Committee had succeeded, after two and a half
month’s diffi cult work, in submitting a draft convention which should
receive the unanimous approval of the General Assembly but also at the
fact that even in that Committee no delegation had opposed the principle
of the convention. Th ere was a diff erence of opinion only on the method
of application of the principles unanimously agreed upon by the Members
of the United Nations in the resolutions adopted in 1946 and 1947.
Th ere had, however, been some abstentions in the fi nal vote in the Sixth
Committee1. Some delegations had given as a reason for their abstention
the fact that the convention did not contain certain provisions which might
have been more eff ective from the point of view of the suppression of
genocide. Mr. Abdoh drew attention to the fact that the draft submitted
to the General Assembly was a compromise text prepared in the hope
that it would meet with unanimous approval without compromising the
Annex 14
2056 A/PV.178
principle that the existence of racial, religious or national groups was as
sacred as the life of an individual.
1 See Offi cial Records of the third session of the General Assembly, Sixth Committee, 132nd
meeting.
Th e draft convention was certainly far from perfect. For its part, the delegation
of Iran regretted that the Committee had not adopted the principle
of universal subsidiary punishment in the case of genocide. It understood,
however, the reasons why some delegations had opposed its proposals and
it would not press the point, as it did not wish to delay the work of the
General Assembly, particularly at the fi nal stage. Th e Iranian delegation
likewise regretted that amendments, rejected by the Sixth Committee after
lengthy discussion, had been submitted to the General Assembly.
Mr. Abdoh emphasized that the measures provided for in the draft convention
for the prevention and punishment of genocide should not be
under-estimated. Under the terms of the convention, States were obliged
to have guilty parties punished by their own courts to deny them the right
of asylum and to permit extradition. It also provided that the assistance
of the United Nations organs might be invoked, that the International
Court of Justice might pronounce an opinion on the violations of the
convention, and that the International Law Commission should study
the question of setting up an international criminal court.
Recalling the words of wisdom spoken by Mr. Evatt in the Economic and
Social Council, Mr. Abdoh stressed that it would be better to proceed
slowly and to include in the convention at the present time only those
points on which agreement could be reached, reserving its completion
for a future date. In preparing the convention, the United Nations had
fi lled an international moral and humanitarian need and had hastened
humanity’s progress towards a better civilization.
Th e Iranian representative wished to pay a tribute to the delegations of
India, Cuba and Panama, which had taken the initiative of proposing the
fi rst draft resolution on genocide in 1946. He also praised Professor Lemkin
of Yale University, who had enriched legal science by establishing the
character of genocide as a crime against human rights and by awakening
public opinion to the necessity of combatting that world-wide scourge. In
Annex 14
A/PV.178 2057
conclusion, Mr. Abdoh hoped that Member States would sign and ratify
the convention in the near future.
Mr. Parodi (France) recalled that his delegation had for two years taken
part in all debates on the subject of genocide and in 1946 had submitted
a draft resolution based on the idea that the crime could only be punished
at an international level, since it was most often committed, if not with
the complicity of a Government, at least with its tolerance. Th e French
delegation’s draft resolution had contained not only the principle of the
setting up of an international criminal court but also detailed provisions
regarding the functioning of that court.
Th at idea, which had appeared essential to the French delegation, had only
been partly retained in the draft convention before the Committee. Th e
French delegation saw, however, in that draft the result of many conciliatory
eff orts and it was for that reason that it had not again submitted to
the General Assembly those of its amendments which had been rejected
by the Sixth Committee. France had been able to adopt that conciliatory
position because article VI of the convention provided for the setting up
of an international criminal court. It was true that the competence of
that court would only be optional at fi rst, but owing to the fact that the
convention mentioned it, it would pass into the sphere of positive law,
which would be an important result. Th e convention provided that the
International Law Commission should draw the necessary conclusions
from the principle thus inscribed in the fi rst draft convention, namely to
prepare the statutes and rules of procedure of the international criminal
court. Th e draft had thus considerable legal signifi cance.
Its moral signifi cance was of no less importance, for in spite of its imperfections
the convention could not fail to have a preventive eff ect throughout
the world inasmuch as it expressed the feelings of the conscience of mankind,
aroused by the indignation caused by the odious crimes committed
by a great country a few years ago. If that preventive action only saved
a few human lives by suppressing forms of hatred and fanaticism which
dated from the most barbarous periods of history, the work of the Sixth
Committee would not have been in vain. It was for that reason that the
French delegation would vote for the draft convention prepared by the
Committee and against the amendments which had been submitted.
Annex 14
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Mr. Sundaram (India) stated that his delegation, having been one of the
sponsors of the resolution of 11 December 1946, could not help feeling
some pride at the results accomplished. True, the draft convention,
evolved after two years of study, represente a compromise solution, and
as such could not be considered completely satisfactory. Nevertheless, Mr.
Sundaram felt that it was likely to obtain the agreement of the majority.
In order to be eff ective, a convention of that kind must be sure of the
support of a large number of countries; that was why the Indian delegation
was generally prepared to accept it in spite of its various shortcomings,
for it represented a useful step towards the fi nal goal.
Th e views of the Indian delegation with respect to the various articles
of the convention were well-known. Mr. Sundaram would consequently
confi ne himself to some comments on the amendments submitted to the
General Assembly.
He stressed, fi rst of all, that although a preamble might improve the
form of a convention, it added nothing to its provisions. A preamble
must therefore of necessity be brief and clear, and give no ground for
controversy. Th e preamble proposed by the Sixth Committee satisfi ed
those requirements, and the Indian delegation would consider any additions,
such as those proposed by the USSR delegation, superfl uous and
even dangerous.
Th e Venezuelan delegation wished to add to the convention the following
defi nition of cultural genocide: “Systematic destruction of religious edifi ces,
schools or libraries of the group”. Mr. Sundaram pointed out that under
article II, genocide was defi ned in terms of acts committed with intent to
destroy, in whole or in part, a national, ethnical, racial or religious group,
as such. Intent was closely linked to the act, but whatever the intent, the
result must be the total or partial destruction of the group. It could not
be asserted, however, that the group, as such, would be annihilated by
the destruction of its religious edifi ces, schools or libraries. Th e Venezuelan
amendment did not suffi ciently indicate the connexion between the
intention and the act, and could not be accepted.
Th e second amendment of the USSR also proposed to add an article on
cultural genocide in the convention, and to that end, it repeated the text
submitted by the ad hoc Committee. Th e Indian delegation had clearly
stated its, position on that whole question both in the ad hoc Committee
Annex 14
A/PV.178 2059
and at the 83rd meeting of the Sixth Committee; it had stated explicitly
that any attempt to destroy the language, the religion or the culture of a
group within a State was wholly reprehensible and should not be tolerated
by any civilized Government. It had pointed out that the Constitution
of India contained adequate provisions for safeguarding the language,
religion and culture of any minority group. It considered however that
the protection of the cultural rights of groups should be assured by the
declaration of human rights, which would shortly come before the General
Assembly. Th e Indian delegation would therefore vote against the second
USSR amendment.
It would, however, support the third USSR amendment, to delete from
article VI the words “or by such international penal tribunal as may
have jurisdiction with respect to those Contracting Parties which shall
have accepted its jurisdiction”. It must be remembered that the Sixth
Committee itself had decided, at its 98th meeting, to delete that vague
reference from the convention, and that it had adopted draft resolution
B requesting the International Law Commission to study the possibility
of setting up an international penal tribunal, which would be the only
method of dealing with that complicated and diffi cult matter. Th e Indian
delegation could not understand why the Sixth Committee had gone back
on its original decision. Before the tribunal could begin to function, a
host of complicated problems, such as jurisdictional confl icts between the
national courts and the international tribunal, would have to be solved
and a detailed convention drafted. Why prejudge the question by declaring
there and then that persons committing genocide would be tried “by
such international penal tribunal as may have jurisdiction with respect
to those Contracting Parties which shall have accepted its jurisdiction”?
It would be simpler to include such a provision in the future convention
that would set up the tribunal.
As regards the fourth USSR amendment, the Indian delegation believed
that it was implicit in articles I and III of the draft convention, whereby
the signatories generally undertook to punish genocide and the incitement
to commit genocide. It seemed superfl uous to specify the means of
enforcement of that pledge.
Mr. Sundaram then drew the Assembly’s attention to the text of article
IX which had been considerably extended in comparison with the original
text drafted by the ad hoc Committee1. Th e latter had provided for
Annex 14
2060 A/PV.178
the submission to the International Court of Justice of disputes relating
solely to the interpretation, application or fulfi lment of the convention
on genocide. Th e present text mentioned, in addition, disputes “relating
to the responsibility of a State for genocide or for any of the other
acts enumerated in article III”. Th e Indian delegation feared that such a
provision might make it possible to bring before the International Court
of Justice unsubstantiated or insuffi ciently substantiated cases under the
pretext that a State had failed to carry out its obligations under the convention
and that it was responsible for some act of genocide committed
in its territory.
1 See Offi cial Records of the Economic and Social Council. Th ird Year, Seventh Session,
Suppl. No. 6, article X.
In conclusion, Mr. Sundaram stated that the Indian delegation would
vote for the draft resolutions recommended to the Assembly by the Sixth
Committee. It would also vote for the third amendment submitted by the
USSR delegation. Finally, although it would vote for the draft convention
as a whole, it wished to make clear that the Indian Government might
fi nd it necessary to make some reservations in regard to articles VI and
IX before signing or ratifying the convention.
Mr. Raafat (Egypt) recalled that in November 1947, the Egyptian delegation
had toiled side by side with the delegations of Panama and Cuba in
order to speed the drafting of an international convention on genocide.
Th e draft which was then before the General Assembly had been adopted
by a very small margin in the Sixth Committee, and that fact seemed to
throw doubts on the necessity for, or utility of, such a convention.
Now, twelve months later, the General Assembly was called upon to
take a decision on a draft convention to which the Sixth Committee
had devoted most of its time and eff orts during the current session. Th e
draft, which was the result of numerous concessions, could obviously not
satisfy everybody. Yet it pointed to the growing need which had been felt,
at least by certain delegations, for an international convention to prevent
and punish that abominable crime against humanity which was known
as genocide. Without even speaking of the thousands of Moslems who
had in the meantime fallen, victims of religious quarrels in certain parts
of the world, it was enough to mention the sad events which had taken
Annex 14
A/PV.178 2061
place during the last months close to the Egyptian borders. In that connexion,
Mr. Raafat stressed that the recent massacres committed in the
Holy Land must inspire all nations of goodwill to redouble their eff orts
to prevent and punish genocide wherever it might occur. Th at was why
the Egyptian delegation attached such immediate importance to the draft
convention before the Assembly.
Th e draft certainly left much to be desired from many points of view. In
particular, it contained gaps, such as the complete absence of any reference
to cultural genocide or of any provision for an international penal tribunal
competent to try those guilty of acts of genocide, especially in the case
of responsible Governments or highly-placed offi cials. Th e question of
international penal competence had not been totally set aside, since one
of the two draft resolutions which accompanied and to a certain extent
supplemented the draft convention invited the International Law Commission
to study the matter. Th e Egyptian delegation welcomed that initiative,
for, in its opinion, the punishment of a crime such as genocide could be
eff ective and serve as a warning only if the most dangerous culprits were
convinced that, while they might easily escape under the timid or indulgent
judgment of national courts, they would not escape the judgment of the
free, impartial and independent international tribunal.
Mr. Raafat concluded by stating that the Egyptian delegation would vote
for the draft convention in spite of its shortcomings, and would make
it its duty to recommend its ratifi cation to the Egyptian Government. It
would also support the concise and sensible amendment submitted by
the Venezuelan delegation. It felt, however, that at the present stage of
work it was too late to consider the various amendments proposed by
the USSR delegation.
Mr. Khomussko (Byelorussian Soviet Socialist Republic) drew attention
to the fact that the question which had occupied the Sixth Committee for
two months and which was now before the General Assembly had fi rst
arisen during the Second World War. It was undeniable that the heinous
crime of genocide was a child of fascism, the result of the fascist theory
of the supremacy of the master race.
Th e representative of Byelorussia referred to the cases of genocide committed
in the territory of his country. He mentioned specifi cally the instance
of the ghettos and concentration camps set up by the Hitlerite occupation
Annex 14
2062 A/PV.178
forces in Minsk, where hundreds of Byelorussians, Poles and Jews died
daily and where from August 1942 onwards the Germans had used gas
chambers to hasten the extermination of the population.
Describing genocide as racial hatred in action, Mr. Khomussko pointed
out that the amendment which the USSR delegation had proposed to the
preamble of the draft convention was quite sound in that it stressed the
organic relationship between genocide and the theories which preached
racial hatred, domination by “superior” races and the extermination of
“inferior” races. Th e Byelorussian delegation would consequently give it
its wholehearted support.
Th e second USSR amendment, which proposed the insertion of a new
article in the convention, had already been discussed at length in the
Sixth Committee. Certain delegations, claiming that it was diffi cult to
defi ne cultural genocide accurately, had insisted on viewing it as part of
the larger problem of human rights. Th ose arguments were neither logical
nor convincing. Th e text suggested by the USSR delegation dealt with
certain premeditated acts, undertaken with the purpose of destroying the
language, religion or culture of a national, racial or religious group. Means
must therefore be found to prevent and punish such crimes; it was not
suffi cient merely to refer the question to the Commission on Human
Rights for study. It was important to defi ne any step intended to suppress
a language, a culture or a religion, or to destroy libraries, museums,
schools or national monuments as a crime under common law. Experience
of hitlerism had shown that such barbaric acts constituted some of the
elements of racial or national persecution, aimed at the extermination of
certain groups of the population, and were consequently a form of the
crime of genocide.
For the Byelorussian people, genocide was not a theoretical or juridical
issue. Th e Byelorussian people would never forget the crimes committed
by the Nazis during their occupation of its territory. It knew that
the destruction of cultural and national centres accompanied the mass
destruction of people, cities and villages. Th e Germans had burned the
Academy of Sciences, the State University, the State Library, the schools
of medicine and law, the Ballet Th eatre, the National Library, whose
books had been plunderod or destroyed, and over one thousand school
buildings in the region of Minsk alone. Th ey had tried to destroy those
cultural centres in order better to enslave the Byelorussian people. Th e
Annex 14
Annex 15
UN General Assembly, 179th Plenary Meeting, Continuation of the discussion on the draft convention
on genocide: reports of the Economic and Social Council and of the Sixth Committee, A/PV.179
(9 December 1948), reproduced in Abtahi & Webb, The Genocide Convention:
The Travaux Préparatoires (Martinus Nijhoff 2008)
Th e Genocide Convention
Th e Travaux Préparatoires
By
Hirad Abtahi and Philippa Webb
Volume One
2008
Annex 15
Contents xv
A/C.6/245 ................................................................................. 1992
A/C.6/248 ................................................................................. 1993
A/C.6/248/Rev.1 ....................................................................... 1994
A/C.6/249 ................................................................................. 1994
A/C.6/251 ................................................................................. 1995
A/C.6/252 ................................................................................. 1996
A/C.6/256 ................................................................................. 1997
A/C.6/257 ................................................................................. 1999
A/C.6/258 ................................................................................. 2004
A/C.6/261 ................................................................................. 2004
A/C.6/264 ................................................................................. 2005
A/C.6/267 ................................................................................. 2005
A/C.6/269 ................................................................................. 2006
A/C.6/270 ................................................................................. 2008
A/C.6/273 ................................................................................. 2009
A/C.6/288 ................................................................................. 2010
A/C.6/289 & Corr.1 ................................................................. 2011
A/C.6/295 ................................................................................. 2017
A/C.6/299 ................................................................................. 2018
A/C.6/305 ................................................................................. 2019
A/C.6/310 ................................................................................. 2020
A/C.6/312 ................................................................................. 2021
A/760 ........................................................................................ 2022
A/760/Corr.2 ............................................................................ 2038
A/766 ........................................................................................ 2039
A/770 ........................................................................................ 2041
A/PV.178 .................................................................................. 2042
A/PV.179 .................................................................................. 2063
Convention on the Prevention and Punishment of the Crime
of Genocide .............................................................................. 2086
Complete List of Documents with Full Titles .......................... 2093
Index of Names ........................................................................ 2121
General Index ........................................................................... 2132
Annex 15
A/PV.179 2063
crimes committed in the Union of Soviet Socialist Republics, in Poland,
in Czechoslovakie [sic] and in the other occupied territories showed that
everywhere the destruction of cultural centres had been one of the essential
elements of nazi activity.
One of the objectives of the convention must be the prevention and
punishment of such crimes. Th at was why the Byelorussian delegation
would give its wholehearted support to the amendment proposed by the
USSR delegation for the insertion of a new article in the convention. It
would also vote for the USSR amendment proposing that a new article
X should be inserted in the convention, providing that the contracting
parties should undertake to disband organizations designed to incite racial,
religious or national hatred and to provoke the commission of crimes of
genocide.
Th e meeting rose at 1.20 p.m.
HUNDRED AND SEVENTY-NINTH PLENARY MEETING
Held at the Palais de Chaillot, Paris, on Th ursday, 9 December 1948,
at 3.30 p.m.
President: Mr. H.V. Evatt (Australia).
115. Continuation of the discussion on the draft convention on
genocide: reports of the Economic and Social Council and of
the Sixth Committee (A/760, A/760/Corr. 2)
Amendments proposed by the Union of Soviet Socialist Republics
to the draft convention proposed by the Sixth Committee (A/766)
and amendment proposed by Venezuela (A/770)
Mr. de Beus (Netherlands) stated that the draft convention on genocide
and the questions which had again been brought up for discussion, had
been examined at length and decided upon in the Sixth Committee.
Although the Netherlands delegation was not satisfi ed in all respects with
the draft in its fi nal form, it would vote for the convention but would
unfortunately be unable to vote for any of the amendments which had
been submitted to the General Assembly.
Annex 15
2064 A/PV.179
Mr. de Beus said that he would limit his comments to one aspect of
the convention which, in the opinion of his delegation, was the most
important. In order that the convention might become an important and
benefi cial element in the development of international law, and in the
international community, it was necessary that persons guilty of genocide,
whatever their nationality, status or rank should be brought to impartial
trial and subjected to adequate punishment. From the discussions in the
Sixth Committee it was evident that most delegations considered that question
to be the most crucial aspect in the application of the convention.
Th e Netherlands delegation had supported the point of view that the only
method which would ultimately guarantee that perpetrators of the crime
would be brought to justice on an impartial basis was trial by a competent
international criminal court. Th us, Mr. de Beus had consistently upheld the
view that the convention should contain the specifi c mention that persons
charged with committing genocide should be tried by an international
criminal court, if such a court were established. Th erefore his delegation
was glad that such a reference had been reinserted in article VI during
the fi nal revision of the convention in the Sixth Committee.
Th e Netherlands delegation, while realizing that no international court
yet existed which was competent to try individuals charged with committing
genocide, did not consider it to be a suffi cient reason for excluding
from the convention the possibility that cases of genocide might one day
be referred to such a court. On the contrary, his delegation felt that the
Assembly should not limit itself to a reference to an international court
which might eventually be set up, but should take the fi rst step towards
the realization of that ideal. Th e matter was diffi cult and complicated,
and an investigation should be undertaken fi rst to decide on the advisability
of creating such an international court. With that end in view,
the Netherlands delegation had submitted a draft resolution the purpose
of which was that the General Assembly should invite the International
Law Commission to undertake such a study. During the discussion in the
Sixth Committee, the Netherlands draft resolution had been combined
with a similar proposal submitted by Iran and amended by Venezuela.
Th e Netherlands delegation was grateful to both delegations for their cooperation
and assistance. Th at joint proposal, which had been adopted
by the Sixth Committee, was before the General Assembly. Yet the draft
resolution, in its present form, was not limited to proposing the establishment
of a court for the trial of acts of genocide only.
Annex 15
A/PV.179 2065
Th e problem had much wider aspects and Mr. de Beus reminded the
Assembly that in recent times the question of creating an international
criminal court had been discussed on several occasions. He referred to the
draft convention for the establishment of an International Criminal Court
for the trial of acts of terrorism which had been drawn up in 1937, but
had never come into force. He also referred to the Nürnberg International
Military Tribunal which, however, was only an ad hoc body established
for a limited period of time and for a specifi c purpose.
In the opinion of the Netherlands delegation the need for an international
criminal court might assume greater urgency as international contacts
became more frequent and as the types of crimes requiring international
action became more numerous. Mr. de Beus recalled that the Committee
for the Progressive Development of International Law and its Codifi cation
had drawn the attention of the General Assembly, at its second session,
to the desirability of establishing such an international court. Th e fact
that a competent international criminal tribunal did not yet exist was no
valid reason for not proceeding further with the matter. Th e text of the
draft resolution inviting the International Law Commission to study the
establishment of an international criminal court had been carefully worded
so as to enable as many delegations as possible to vote for the resolution
without, however, committing themselves to support the idea of establishing
such a court before its desirability had been thoroughly studied.
Mr. de Beus wished to clarify one point in order to prevent any possible
misunderstanding. In the opinion of his delegation, it would not be necessary
to establish a permanent body. Th e International Law Commission
might perhaps come to the conclusion that, in the early stages, it would
be suffi cient to establish a list of judges who could be convened in session
when the need arose.
Mr. de Beus concluded by calling upon the General Assembly to take a preliminary
step towards the establishment of an international criminal court.
Such a step would be one of the most valuable practical contributions the
United Nations could make to the development of international law.
Mr. Dihigo (Cuba) said that the motion of Cuba, India and Panama,
stating that genocide was a crime against international law, and requesting
the Economic and Social Council to prepare a draft convention, had
been unanimously adopted by the General Assembly in its resolution 96(I)
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of 11 December 1946. Later, at the second session in 1947, a motion
submitted to the Assembly by Cuba, Panama and Egypt had reaaffi rmed
the original proposal and requested the Economic and Social Council to
prepare a report and a draft convention. After two years of intensive work
by a group of experts, the draft convention was now before the General
Assembly. It was not perfect but from a legal point of view genocide
being a new element, it was natural that there should be divergencies of
opinion on the subject. Th e Sixth Committee had done excellent work
in that connexion and Mr. Dihigo was convinced that the adoption of
the convention would be considered one of the great achievements of
the United Nations.
Mr. Alfaro (Panama) expressed the hope that the General Assembly
would adopt the draft convention on genocide which, together with the
International Declaration of Human Rights, could be regarded as the
two most important achievements of the third session of the General
Assembly.
Th e convention on genocide was the result of the universal dislike of
a crime which had been perpetrated throughout history but had never
reached the depths of premeditated cruelty to which it had sunk recently
and during the years immediately before the Second World War. Th e crime
had been committed systematically and as a government plan diabolically
conceived and cold-bloodedly executed. A feeling of repulsion had again
arisen before the spectacle of the crime still being committed. Th at feeling
of horror had resulted in the General Assembly’s resolution of December
1946, which had enabled the Sixth Committee to present a proposal to
the General Assembly whereby a legal instrument would be placed at the
service of humanity for the purpose not only of preventing the crime itself
but also of punishing those committing it.
Mr. Alfaro recalled that the elaboration of the draft convention had not
been an easy task. Legal experts of over fi fty nations had endeavoured to
fi nd a formula which might not only satisfy the majority but would also
produce an effi cient and useful instrument. Naturally, complete unanimity
had not been reached in the Committee; diff erences in political organization,
in penal codifi cation and in criteria existing between the diff erent
countries had given rise to prolonged and important discussions, but these
discussions had been brought to a close thanks to the democratic system
of accepting the views of the majority. Th e vote of the majority was based
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not only on criteria based on legal techniques and usages, but also on
considerations of a political nature which had eliminated items giving
rise to widely divergent views. Th e draft convention had now become a
common denominator of agreement between nations.
While the draft convention might contain certain defi ciencies, there were
no fundamental omissions. Genocide, whether perpetrated in peace or in
war, was defi ned in the convention as a crime against international law
which the signatory parties undertook to prevent and to punish. Genocide
covered certain acts committed with the intent of destroying, in whole or
in part, national, ethnical, racial or religious groups.
Mr. Alfaro enumerated those acts and added that punishment would be
meted out to all people who committed the crime whether they were
private individuals or public offi cials. Punishment under national legislation
would also be covered but the door was left open to the possibility
of establishing an international penal code. Th e draft convention specifi ed
that genocide would not be considered as a political crime au [sic] that
extradition could be applied to those found guilty. Finally, the International
Court of Justice would be requested to consider any disputes between
nations regarding the possible implementation of the draft convention;
those disputes would be submitted to the Court only if they concerned
crimes involving international responsibility and if they were not punishable
under civil or criminal codes.
Mr. Alfaro pointed out that the draft convention on genocide contained
all the elements indispensable for the punishment, prevention and condemnation
of the crime. If any delegation felt that the draft convention
was not complete, that the text could be improved, or that a State could
not adhere to it because of certain provisions in its national legislature,
those diffi culties could be overcome by means of reservations. He felt,
however, that a delegation could not abstain from signing the convention
in case the amendments were or were not accepted.
Mr. Alfaro concluded by making a strong appeal to the General Assembly
to vote unanimously in favour of the draft convention on genocide.
Mr. Amado (Brazil) was pleased that the General Assembly was at last
dealing with a subject which had been under discussion for over two
years, and expressed appreciation of the work and untiring eff orts of the
legal experts who had helped to draw up the convention.
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Th e Brazilian delegation had closely followed the question of genocide
since 1946 when it was studied by the Committee for the Progressive
Development of International Law and its Codifi cation. Th e draft convention
drawn up by the Sixth Committee had been the outcome of many
compromises on the part of delegations and the results obtained, though
not perfect, were gratifying. Th e concept of genocide had been clearly
defi ned, and the parties to the convention would be called upon to punish
genocide through their national tribunals whether the crime was committed
in their own territories, by private individuals or by public offi cials.
Th e application of the convention, however, was not inconsistent with
the national legislation of individual States which in certain cases would
give their own tribunals extra-territorial competence. Th e convention
included the provision that genocide whould not be considered a political
crime for purposes of extradition. After lengthy discussions, the members
of the Committee had agreed to include in the convention the idea that
genocide should be judged by an international court to be set up, and the
jurisdiction of which would be recognized by the parties concerned.
Th e Brazilian delegation had been opposed to the mention of political
groups in the convention because those groups were not suffi ciently integrated
to warrant their protection by the convention. It had also been
opposed to the establishment of an international penal jurisdiction which
it considered a vague and idealistic notion. However, the fi nal drafting of
the proposal was achieved by the introduction of the principle of noncompulsory
jurisdiction, and a resolution was adopted entrusting the
International Law Commission with a detailed study of the matter.
For all those reasons, Mr. Amado added that his delegation had reconsidered
the question and had voted in favour of the insertion in the convention
of a reference to the International Criminal Court.
In referring to the numerous compromises made by the diff erent delegations:
Mr. Amado made special mention of the co-operative attitude of
the delegations of the United States, France, and the United Kingdom.
Th e Brazilian representative concluded by appealing to every Member to
sign the convention which, if not fully satisfying their requirements, was
at least a step in the right direction. All Member States should make use
of the opportunity aff orded to them to show their harmonious attitude
in the establishment of an instrument which would greatly contribute to
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diminishing the suff ering and horrors which the crime of genocide had
caused.
Mr. Fitzmaurice (United Kingdom) said that the members of the Sixth
Committee would recall that his delegation had abstained from voting
when the draft convention on genocide was adopted in that Committee.
He was pleased to announce that the United Kingdom delegation was
now in a position to vote in favour of the convention.
Although his country had always been in full accord with the suppression
of genocide and with the view that genocide constituted an international
crime of the most odious character, the United Kingdom Government
had held certain doubts on the convention on genocide which were based
on purely domestic reasons. However, a re-examination of the position
had led his Government to the belief that the existing criminal law in
the United Kingdom covered probably all, or at least most of the types
of off ences, contemplated by the draft convention. A further examination
of the draft would be necessary by legal experts in the United Kingdom
before that impression could be fi nally confi rmed and, in the meantime,
his delegation’s vote in favour of the convention should not be taken as
committing the United Kingdom Government to any detailed amendment
of its national law. With that reservation, the United Kingdom
delegation would support the convention. Its vote, however, should be
considered as being without prejudice to the traditional and inalienable
right to grant asylum, and, in that connexion, Mr. Fitzmaurice referred
to the recognition of that principle clearly implied by article 12 of the
draft declaration on human rights.
With regard to the amendments which had been proposed to the convention,
the United Kingdom delegation shared the views expressed at
the previous meeting by the United States representative, and would vote
against those amendments for the same reasons that it had voted against
the corresponding proposals which had been made in the Sixth Committee.
Mr. Fitzmaurice added that his delegation fully sympathized with
the motives which had inspired the Uruguayan amendment and that it
echoed the sentiments which had been expressed on the subject by the
representatives of Uruguay and Pakistan.
After careful consideration, however, the United Kingdom delegation still
held the view that the whole fi eld of cultural genocide was essentially
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a matter of human rights and that the convention on genocide should
be confi ned in the strict sense to the physical extermination of human
groups.
With regard to the colonial clause, Mr. Fitzmaurice said that since the
United Kingdom delegation would vote in favour of the convention,
the question of retaining the colonial clause in its present form in the
text assumed greater importance; the clause should not be amended as
proposed by the USSR delegation. Th e application of the convention to
the colonial territories might require legislation in many or in all those
territories, and the United Kingdom Government could not commit those
territories in advance without enacting such legislation. Th e argument
put forward by the delegation of the Soviet Union that the Governments
and authorities of those territories could not validly refuse to enact the
necessary legislation, and that they would in any case not wish to refuse,
however true it might be in substance, did not aff ect the technical constitutional
position, nor did it do away with the need for the colonial
clause from the point of view of the Powers which were internationally
responsible for those territories. Mr. Fitzmaurice added that, although he
was speaking only on behalf of his own country, he believed he was also
presenting the views of all those countries which were also responsible
for colonial territories.
Contrary to what the USSR representative had said at the previous meeting,
the convention on genocide not only involved rights for peoples but
also obligations on Governments, not only towards their own peoples but
also towards other States. Th is, for instance, applied to the obligation
to eff ect extradition for crimes of genocide. Th erefore, however likely
it might be that colonial territories would, in fact, accept those obligations,
Governments and administrations of self-governing, or practically
self-governing territories, could not be committed in advance to do so
legally or constitutionally because they would have to pass the necessary
legislation.
Mr. Fitzmaurice said that there was no foundation for the suggestion made
by the delegation of the Soviet Union that the United Kingdom delegation
had some sinister motive for wishing to maintain the colonial clause. Th e
record of the United Kingdom with regard to its colonial peoples was
suffi ciently well known. Th e United Kingdom Government fully appreciated
the principle of universality in relation to genocide and had merely
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asked, on constitutional and technical grounds, for the inclusion of the
usual colonial clause which was common to most treaties.
Mr. Fitzmaurice concluded by expressing his delegation’s appreciation for
the excellent work done and co-operation shown by the Chairman, the
Vice-Chairman, and the Rapporteur of the Sixth Committee, and for the
able assistance rendered by the Secretariat.
Mr. Kaeckenbeeck (Belgium) said that the Belgian delegation in the
Sixth Committee had voted in favour of the draft convention since it
had seemed to achieve whatever had been possible in the circumstances.
It had been the result of many compromises which had been accepted
in order to render it acceptable to the greatest possible number of States.
His delegation had been fully aware that such compromises could not be
absolutely satisfactory, either in logic or in practice. He had pointed out
that the provisions concerning extradition might cause certain diffi culties
or delays in the acceptance and implementation of the convention by his
country. Th e convention would require certain changes in national legislation
and possibly the revision of certain treaties. It was essential, however,
to accept the compromises, whatever their defects, because that seemed the
only way by which a positive solution could be reached without endless
revision. Th e Belgian delegation, therefore, would vote in favour of the
convention and against all the amendments.
Mr. Katz-Suchy (Poland) pointed out that the Polish delegation had
taken a very active part in examining the draft convention on genocide in
the Sixth Committee, partly as a result of a specifi c appeal made by the
Australian delegation to the Economic and Social Council, in Geneva, on
25 August 1948. Nazi Germany had infl icted on Poland some of the worst
acts of genocide known to history. As a result, Poland had lost more that
six million people and had suff ered irreparable material, moral, spiritual
and cultural damage. No country, therefore, had a greater interest than
Poland in seeing genocide condemned and combated.
Unfortunately, the convention did not fulfi l the most elementary requisites
for the prevention and punishment of that crime. Th e preamble,
when defi ning the crime of genocide and analysing its origin, omitted all
reference to acts of genocide committed by fascist regimes, particularly
by nazi Germany and Franco Spain. It failed to emphasize the fact that
there was a direct connexion between such crimes and the propaganda
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put out by the racialists sponsoring those regimes; yet such a declaration
should have been the very foundation of the convention. Believing that
the omission had been deliberate and had been made against the advice of
countries such as Poland and the USSR, who had suff ered most severely
at the hands of those regimes, the Polish delegation could not accept the
preamble.
He found it deeply disturbing that that omission had been made at the
insistence of the United States delegation which had argued that to postulate
an organic link in the preamble between the crime of genocide and
fascist race theories would alienate Germany and Italy and would make
it diffi cult for those countries to accede to the convention in the future.
His delegation wished to make it quite clear that it did not desire to bar
either Italy or Germany from international conventions. It believed, on
the contrary, that their accession to the convention on genocide would
be most desirable, providing that certain prerequisites were fulfi lled. Th e
most important was the understanding of their responsibility and the
recognition of the close link existing between the crime of genocide and
racial theories and other similar doctrines which had been the offi cial
ideology of those countries for many years and which unfortunately was
still rooted in those countries. Th at was why the Polish delegation had
wished the preamble to include such provisions.
In an attempt to fi nd a compromise formula in order to counter the
opposition of the United States delegation to a preamble specifi cally stating
the responsibility of fascism and nazism for mass acts of genocide, the
Polish delegation had made certain suggestions; they had, however, been
rejected by a majority headed by the United States delegation.
In his view, it was essential that the preamble should mention the organic
link existing between fascism and racial theories on the one hand, and the
crime of genocide on the other. Th e conclusion to be drawn automatically
was that the most decisive form of struggle against genocide lay, not in
a vague general statement, but in the defi nite prohibition of incitement
to national, racial and religious hatred and the stringent punishment of
persons guilty of such incitement. Th e only successful method of combatting
genocide was to attack its roots.
Th e Polish delegation had taken an active part in the work of the Sixth
Committee in the hope that the convention would become a really active
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instrument for the prevention and punishment of genocide and would,
above all, be likely to prevent any repetition of the crime. His delegation
had always maintained that the only way of preventing that crime would
be to take adequate measures long before it was initiated. His country’s
own experience of mass destruction – committed not as the consequence
of military operations, but want only – had been the obvious reason for
its attitude.
In that connexion, Mr. Katz-Suchy emphasized hid delegation’s disappointment
with the methods and machinery applied to the prosecution
of war criminals responsible for the crimes committed in Poland during
the German occupation. Only a few thousand criminals had been brought
to book. Even within those narrow limits, retribution had been clearly
inadequate. War criminals guilty of the extermination of thousands of
Poles and others were again prominent in the political life of the Western
Zones of Germany; though traced by the Polish Government, they had
not been handed over to Poland, despite demands for their extraditions.
Mr. Katz-Suchy gave several examples.
It should not be surprising, therefore, in his opinion, that his delegation
took a somewhat dubious view of the United States’ opposition to
postulating the connexion between fascism and the crime of genocide.
His delegation could not agree with the idea that half-measures would
be eff ective in the future, when so many cases of injustice in that fi eld
existed at present.
His delegation had therefore insisted that the convention should fi rst
of all provide for adequate prevention of the crime of genocide. It had
desired the prohibition of propaganda against racial, religious and national
groups because it knew very well that such propaganda led to crime and
consequently to war. It had also demanded that the convention should
include sanctions against preparatory acts. Th e convention, should also
prohibit any organization the aim of which was genocide. Unfortunately,
such provisions had not been fully implemented in the convention. His
delegation had also submitted that the defi nition of genocide should
include the destruction of a nation’s art and culture, a crime which, like
mass extermination, was the direct consequence of racial theories and of
nazi and fascist doctrine.
Th e United States representative had attempted to merge the problems of
genocide and of human rights. He had virtually contended that cultural
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genocide and freedom of expression were the same thing. Th e representative
of a country which had not experienced the horrors of war on its
own territory might make such a confusion; he could easily oppose the
demand that measures should be taken against cultural genocide under
the pretext of concern for freedom of expression. Poland, however, had
repeatedly and recently been the victim of that crime; its art and science
had suff ered terrible losses.
Mr. Katz-Suchy listed acts of cultural genocide committed by the Nazis
in his country and pointed out that his delegation had introduced proposals
that such crimes should be explicitly covered by the convention.
He regretted that the Polish suggestions and the amendments which his
delegation had supported had not been adopted. He was strongly in
favour of re-drafting article III, as proposed by the USSR amendment,
because the convention would only be fully eff ective if it covered cultural
genocide which could be as destructive of the life of a nation as physical
extermination.
He objected moreover to article VI which provided for the jurisdiction
of an international penal tribunal to deal with genocide. Such a tribunal
did not exist; it was problematical whether it would even be set up in the
future. Th e inclusion of such a principle in the convention constituted
at least a moral obligation on the parties to the convention, although
they could not know precisely what had been meant. Th e creation of an
eff ective international penal tribunal had to be based upon a compulsory,
not on optional, jurisdiction. Th at implied that it would have to be based
on principles contrary to those governing the Statute of the International
Court of Justice. No decision had been taken as to the competence or the
jurisdictional powers of the proposed tribunal and, in particular, whether
it should supersede or merely supplement the competence and jurisdiction
of national tribunals.
If Member States, therefore, accepted article VI in its present form, they
would be assuming obligations, the scope of which they would not know.
An international penal jurisdiction was possible in practice only when an
international executive power existed having substantial means of enforcement
at its disposal. Th e inclusion of the principle of an international penal
tribunal, in article VI, might well constitute an intervention in the internal
aff airs of States and a violation of their sovereignty; perhaps that had been
the intention. It was impossible to accept in advance an international penal
Annex 15
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court which did not exist, which had not been formally proposed or even
discussed, and which might never even come into being. Th e representative
of the Netherlands had argued that such a tribunal would ensure justice.
Unfortunately, another international tribunal had completely failed to
do that. Important nazis like Hjalmar Schacht and General Hoder, for
example, had recently been released by an international tribunal which
had sat under the chairmanship of a United States judge.
Mr. Katz-Suchy said that he objected to the rejection of the article which
provided that invocation of the law or superior orders should not justify
genocide. His delegation could not take any responsibility for a convention
which failed to contain such a provision; he would continue to fi ght for its
inclusion. He pointed out that the charter of the Nürnberg Tribunal and
the military statutes of several States already contained such a provision.
Its rejection, therefore, was a serious step backward in the evolution of
international law. Omission of that provision would prevent the application
of article V, in the original draft, which stated that heads of State,
public offi cials and private individuals should be punished for genocide.
Since heads of State would always invoke the law and public offi cials and
private individuals could always invoke superior orders, the convention
would have no practical eff ect whatever and punishment would fall on a
certain number of lesser individuals, leaving the main instigators of the
crime unpunished.
Th e representative of Poland adduced the example of the sentence handed
down by the Supreme National Tribunal of Poland condemning to death
Josef Buehler, fi rst deputy of the nazi Governor-General of Poland, on the
charge of causing the death of thousands of Polish citizens by applying the
principles of so-called German racial superiority. Th e accused had pleaded
“not guilty”, claiming that his actions had been based on superior orders.
Th e Tribunal, however, found that the accused had committed murder
“from behind his desk and by the pen”.
Th e Polish delegation, therefore, had to protest in the strongest possible
terms against the deletion of the provision that appeal to the law or superior
orders should not justify genocide. Th e effi cacy of the convention
would depend upon including matter which would attract the greatest
possible number of signatures and ratifi cations. It would depend upon
the fact that it applied to all territories without distinction as to their
juridical status. Weak and small nations were most seriously threatened
Annex 15
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by genocide; Trust and other Non-Self-Governing Territories needed most
protection from the convention. He appreciated the great concern shown
by the representative of the United Kingdom for the local jurisdiction
and the local parliaments of the dependent territories. He wondered,
however, whether similar concern was being shown in any other cases.
If the convention were to be eff ective, it had to apply to colonies. Th e
metropolitan States had to be prepared to apply it. Genocide had often
been committed in the colonies; the colonial peoples were always in
danger from the metropolitan States in that respect, whether in the direct
physical form or in the form of cultural genocide.
Despite such objections, the Polish delegation believed that the convention
on genocide, however incomplete and defective, represented a great
step forward. Prevention against future crimes of genocide should be
established. Th e victory over nazism and fascism would only be complete
if provisions were laid down to eliminate the crime once and for all.
He regretted that the draft submitted by the Sixth Committee was not
satisfactory and appealed to the General Assembly to adopt the Convention
in a form such as would permit general acceptance and to avoid everything
which might be regarded as an attempt to make general application
impossible. Th e USSR delegation had submitted a number of amendments.
Most of those covered the points raised by the Polish delegation and met
its objections. His delegation would therefore support them.
Mr. Augenthaler (Czechoslovakia) said that his country attached great
importance to the convention on genocide. He wished to see a really
eff ective convention based upon historical experience. He believed that
it had been suffi ciently demonstrated that crimes committed on the basis
of the doctrine of race superiority all derived from the source which wass
well expressed in the fi rst amendment submitted by the delegation of the
Soviet Union.
Th e General Assembly had an obligation towards all victims of the recent
crimes of genocide to state clearly that nazism and fascism had been
directly responsible; that statement should be included in the preamble
to the convention. Th e USSR amendment would not limit the scope of
the convention, but would make it more precise. He himself would even
suggest that an annex might refer to Hitler’s book Mein Kampf, Mussolini’s
book on fascism and the reports of the Nürnberg trials, showing clearly
the cause and eff ect, the origins and result of genocide. Th ere was no valid
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reason for the toleration of the propagation of fascism. If steps were taken
to suppress that in time, the crime of genocide would be discouraged.
He had appreciated the appeal made by the representative of Australia.
He pointed out that, even before 1933, his own country had addressed
urgent appeals to the whole world when it had seen the nazi danger in
Germany. At that time those appeals had been deprecated; it had been
said that nazism was harmless. Th e same had occurred with regard to
Mussolini in Italy. Th e result of that blindness had been Munich. If the
preamble did not state precisely the danger which had to be combatted,
politicians and lawyers of the future might come to say that the convention
did not apply to such cases and that there was no need to pay too
much attention to them. His country no longer had any such fears since
it had found solid alliances which it considered vital for its whole future;
but there were others who might incur a fate similar to that which his
country had suff ered at Munich.
At the previous meeting the representative of the United States of America
had regretted that the delegation of the Soviet Union had presented amendments.
When on a former occasion it had been a question of eliminating
a resolution on food wastage, no eff ort had been spared to introduce
amendments. When, however, it was a question of denouncing nazism,
the USSR delegation had been blamed for introducting an amendment.
An eff ective convention included the question of tribunals. He could
not agree with arguments that only an international tribunal could mete
out justice in such cases. It was true that if countries allowed criminal
organizations to exist and propagate their doctrines, the tribunals of such
countries might themselves be powerless or too tolerant, as had been the
case in Italy and Germany at one period. If, however, that situation existed
already, it would be hard to conceive that a country would place itself in
the position of a criminal and accept an international tribunal. Th erefore
an international tribunal was not desirable; it might even become the
refuge of all who feared the justice of their own country.
In conclusion, Mr. Augenthaler emphasized that, in his opinion, the
convention would not become really eff ective unless the amendments
submitted by the delegation of the Soviet Union were adopted.
Mr. Manini y Rios (Uruguay) stated that in the Sixth Committee, the
delegation of Uruguay had sustained the point of view that the draft
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convention on genocide should contain no reference to political groups
and to cultural genocide. Both those points had been deleted.
On the other hand, the delegation of Uruguay had lent its support to
the establishment of international jurisdiction to punish genocide, and
hoped that resolution B which covered the point would be instrumental
in achieving progress in international law.
He would vote in favour of the draft convention in the belief that although
not in every respect perfect, the provisions marked a step forward. It was
not appropriate at the present stage of the work to study the amendments
of Venezuela and Sweden in detail; the delegation of Uruguay would
therefore vote against them.
Mr. Tsien Tai (China) said that China had always been in favour of the
condemnation of genocide as an international crime. His delegation had
taken an active share in the work of the ad hoc Committee on Genocide
and earnestly hoped that the convention as drafted by the Sixth Committee
would soon become applicable and contribute to human progress
and to universal peace.
Th e Chinese delegation regretted that the concept of cultural genocide
had been set aside since, in certain aspects, it constituted a worse crime
even than biological or physical genocide. It was less apparent and less
brutal, but it was more extensive and more insidious since it was a means
of depriving a whole people of its culture, its religion and even of its
language.
Th e deletion of the mention of political groups in article II also weakened
the convention. Th e impression was thus created that there was latent a
desire to tolerate a crime committed against a political group; that was
certainly contrary to the spirit of the convention.
Th ough regretting those omissions the Chinese delegation would vote in
favour of the adoption of the convention. It would also vote in favour
of the second USSR amendment; should that amendment be rejected, it
would vote for the Venezuelan amendment.
Th e Chinese delegation would be obliged either to vote against the other
USSR amendments or to abstain. It had to reserve the right of its Government
to sign and ratify the convention with certain reservations in
order to permit the appropriate national authorities to carry out a more
detailed examination of the text.
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Th e President stated that the discussion was closed and that he would
put to the vote the six amendments proposed by the Soviet Union, and
then the Venezuelan amendment.
Mr. Pérez Perozo (Venezuela) said that his delegation had submitted
the amendment as a fi nal appeal to the General Assembly to make an
essential addition to the convention. It had, however, been made clear
by the statements which had been made that other Members did not
share that desire. In order not to hamper the work of the Assembly, the
Venezuelan delegation would withdraw its amendment in the hope that,
at some future occasion, the States parties to the convention would be
prepared to be guided by experience and would support such an amendment,
were it to be submitted again.
Th e President put to the vote the USSR amendment (A/766) to the
preamble of the convention, consisting in the addition of the words “and
recent events have shown that the crime of genocide is organically bound
up with fascism-nazism and other similar race ‘theories’ which propagate
racial and national hatred, the domination of the so-called ‘higher’ races
and the extermination of the so-called ‘lower’ races” after thewords “had
infl icted great losses on humanity”.
Th e USSR amendment to the preamble was rejected by 34 votes to 7, with
10 abstentions.
Th e President then put to the vote the second USSR amendment
consisting in the addition of a new article III to the draft convention
reading as follows:
In this Convention genocide also means any deliberate act committed with
the intent to destroy the language, religion or culture of a national, racial or
religious group on grounds of national or racial origin, or religious beliefs
such as:
(a) Prohibiting the use of the language of the group in daily intercourse or
in schools or the printing and circulation of publications in the language
of the group;
(b) Destroying or preventing the use of libraries, museums, schools, historical
monuments, places of worship or other cultural institutions and objects
of the group.
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A vote was taken by roll-call, as follows.
Turkey, having been drawn by lot by the President, was called upon to vote
fi rst:
In favour: Ukrainian Soviet Socialist Republic, Union of Soviet Socialist
Republics, Yugoslavia, Byelorussian Soviet Socialist Republic, China,
Czechoslovakia, Haiti, Lebanon, Liberia, Pakistan, Philippines, Poland,
Saudi Arabia, Syria.
Against: Turkey, United Kingdom, United States of America, Uruguay,
Argentina, Australia, Belgium, Bolivia, Brazil, Canada, Chile, Colombia,
Cuba, Denmark, Dominican Republic, France, Greece, Honduras, Iceland,
India, Iran, Luxembourg, Netherlands, New Zealand, Nicaragua, Norway,
Panama, Paraguay, Peru, Siam, Sweden.
Abstaining: Union of South Africa, Venezuela, Yemen, Afghanistan, Burma,
Egypt, Ethiopia, Guatemala.
Th e second USSR amendment was rejected by 31 votes to 14, with 10
abstentions.
Th e President then put to the vote the third USSR amendment consisting
in the deletion from article VI of the words “or by such international
penal tribunal as may have jurisdiction with respect to those Contracting
Parties which shall have accepted its jurisdiction.”
A vote was taken by roll-call, as follows.
Ethiopia, having been drawn by lot by the President, was called upon to
vote fi rst.
In favour: India, Poland, Ukrainian Soviet Socialist Republic, Union of
Soviet Socialist Republics, Yugoslavia, Byelorussian Soviet Socialist Republic,
Czechoslovakia, Dominican Republic.
Against: Ethiopia, France, Greece, Guatemala, Haiti, Honduras, Iceland,
Iran, Lebanon, Liberia, Luxembourg, Netherlands, New Zealand, Nicaragua,
Norway, Pakistan, Panama, Paraguay, Philippines, Saudi Arabia,
Siam, Sweden, Syria, United Kingdom, United States of America, Uruguay,
Yemen, Australia, Belgium, Bolivia, Brazil, Burma, Canada, Chile, China,
Colombia, Cuba, Denmark, Egypt.
Annex 15
A/PV.179 2081
Abstaining: Iraq, Mexico, Peru, Turkey, Union of South Africa, Venezuela,
Afghanistan, Argentina.
Th e third USSR amendment was rejected by 39 votes to 8, with 8 abstentions.
Th e President then put to the vote the fourth USSR amendment consisting
of the addition of the following new article X to the convention:
Th e High Contracting Parties undertake to disband and to prohibit in future
the existence of organizations aimed at the incitement of racial, national and
religious hatred and at provoking the commission of crimes of genocide.
A vote was taken by roll-call, as follows,
Mexico, having been drawn by lot by the President, was called upon to vote
fi rst.
In favour: Pakistan, Poland, Saudi Arabia, Ukrainian Soviet Socialist
Republic, Union of Soviet Socialist Republics, Yugoslavia, Burma, Byelorussian
Soviet Socialist Republic, Czechoslovakia, Liberia.
Against: Netherlands, New Zealand, Nicaragua, Norway, Panama, Paraguay,
Siam, Sweden, Turkey, United Kingdom, United States of America,
Uruguay, Venezuela, Argentina, Australia, Belgium, Bolivia, Brazil, Canada,
Chile, China, Colombia, Cuba, Denmark, Dominican Republic, Egypt,
Greece, Iceland, India, Iran, Luxembourg.
Abstaining: Mexico, Peru, Philippines, Syria, Union of South Africa,
Yemen, Afghanistan, Ethiopia, France, Guatemala, Haiti, Honduras,
Iraq, Lebanon.
Th e fourth USSR amendment was rejected by 31 votes to 10, with 14
abstentions.
Th e President then put to the vote the fi fth USSR amendment which
consisted in amending article XII to read as follows:
Th e application of the present Convention shall extend equally to the territory
of any Contracting Party and to all territories in regard to which such a
State performs the functions of the governing and administering Authority
(including Trust and other Non-Self-Governing Territories).
Annex 15
2082 A/PV.179
A vote was taken by roll-call as follows.
Th e Netherlands, having been drawn by lot by the President, was called upon
to vote fi rst.
In favour: Pakistan, Philippines, Poland, Saudi Arabia, Syria, Ukrainian
Soviet Socialist Republic, Union of Soviet Socialist Republics, Venezuela,
Yemen, Yugoslavia, Burma, Byelorussian Soviet Socialist Republic, Czechoslovakia,
Guatemala, Haiti, Iraq, Lebanon, Liberia, Mexico.
Against: Netherlands, Nicaragua, Norway, Panama, Paraguay, Siam, Sweden,
Turkey, Union of South Africa, United Kingdom, United States of
America, Australia, Belgium, Bolivia, Brazil, Canada, Colombia, Denmark,
Dominican Republic, France, Greece, Iceland, Luxembourg.
Abstaining: New Zealand, Peru, Uruguay, Afghanistan, Argentina, Chile,
China, Cuba, Ecuador, Egypt, Ethiopia, Honduras, India, Iran.
Th e fi fth USSR amendment was rejected by 23 votes to 19, with 14 abstentions.
Th e President stated that the sixth and last USSR amendment would
not be put to the vote since it was consequential upon the inclusion of
the two new articles which had been rejected by the preceding votes.
Mr. Morozov (Union of Soviet Socialist Republics) explaining the vote
of his delegation on the draft convention, stated that in the opinion of
the delegation of the Soviet Union genicode was one of the most serious
crimes and was closely connected with fascism, nazism and doctrines of
racial superiority. It was essential that the United Nations should insist
on the strict punishment of anyone who committed the crime.
Th e Soviet Union, more than any other State, had the right to propose
methods of defeating those fascist and nationalist doctrines which were at
the root of genocide. Its proposals had not been approved by the majority
and the draft convention still contained a number of substantial omissions
which were the result of the rejection of the USSR amendment to the
preamble. Th e point made in that amendment that genocide was closely
linked to fascism and nazism was not stated in the draft convention. It
was regrettable that there should remain loopholes which might prevent
the punishment of those who perpetrated the crime of genocide or incited
others to do so.
Annex 15
A/PV.179 2083
Th e delegation of the Soviet Union could not but regret that no article
had been inserted making punishable any deliberate act committed with
the intention of destroying any language, religion, culture or national
belief. Th e proposal to include the conception of cultural genocide had
also been rejected. Th at omission might be utilized by those who wished
to carry out discrimination against national, cultural and racial minorities.
Such discrimination did exist at the present time and prevailed in certain
territories and colonies administered by countries who prided themselves
on their civilization.
Article XII gave the colonial Powers discretion to extend or not to extend
the provisions of the convention to their colonies. Th e rejection of the
USSR amendment providing for the extension of the convention to
all Non-Self-Governing Territories diminished the value of the present
text.
Th e draft convention did however provide for the condemnation of genocide
and rendered it punishable. Th e Soviet Union would consequently
vote in favour of it. With regard to article IX where reference was made
to the International Court of Justice and the international tribunal the
USSR delegation had to maintain its position and insist that, in each
case the submission of any dispute to the International Court of Justice
could only be made with the consent of all the parties directly concerned
in the matter.
Since the amendment of the Soviet Union to article XII had been rejected,
his delegation would vote in favour of the resolution which recommended
that States signatories of the convention and administering dependent
territories should take such measures as were necessary and feasible to
enable the provisions of the convention to be extended to those territories
as soon as possible.
Th e President then put to the vote resolutions A, B, and C proposed
by the Sixth Committee (A/760). A vote by roll-call was requested on
resolution A.
A vote was taken by roll-call as follows:
India, having been drawn by lot by the President, was called upon to vote
fi rst.
Annex 15
2084 A/PV.179
In favour: India, Iran, Iraq, Lebanon, Liberia, Luxembourg, Mexico, Netherlands,
New Zealand, Nicaragua, Norway, Pakistan, Panama, Paraguay,
Peru, Philippines, Poland, Saudi Arabia, Siam, Sweden, Syria, Turkey,
Ukrainian Soviet Socialist Republic, Union of South Africa, Union of
Soviet Socialist Republics, United Kingdom, United States of America,
Uruguay, Venezuela, Yemen, Yugoslavia, Afghanistan, Argentina, Australia,
Belgium, Bolivia, Brazil, Burma, Byelorussian Soviet Socialist Republic,
Canada, Chile, China, Colombia, Cuba, Czechoslovakia, Denmark,
Dominican Republic, Ecuador, Egypt, Ethiopia, France, Greece, Guatemala,
Haiti, Honduras, Iceland.
Resolution A was adopted by 56 votes to none.
Resolution B was adopted by 43 votes to 6, with 3 abstentions.
Resolution C was adopted by 50 votes, with 1 abstention.
Th e President stated that the adoption of those three resolutions and
the approval given by the Assembly to the Convention on Genocide was
an epoch-making event.
Wholesale or partial destruction of religious, racial and national groups had
long shocked the conscience of mankind. Endeavours had been made in
the past to preserve human groups from destruction through humanitarian
intervention undertaken generally by one single State. Governments which
carried out such interventions had frequently been accused of pursuing
other than humanitarian ends.
Today international and collective safeguards had been established for the
protection of human groups. Any action which would be undertaken in
the future would be undertaken on behalf of the United Nations. Th e
United Nations and other organs would be entrusted with the supervision
of the application of the Convention on Genocide and their intervention
would be made in accordance with international law and not on the basis
of unilateral policies. Th us, in that fi eld, the supremacy of international
law had been proclaimed and a signifi cant advance had been made in the
development of international criminal law. Fundamental human rights
had formerly been protected by international convention against piracy,
the slave trade and the traffi c in women and children. Th e Convention
on Genocide protected the fundamental right of a human group to exist
as a group; by approving it the General Assembly had, in accordance
Annex 15
A/PV.179 2085
with Article 13 of the Charter, promoted the “progressive development
of international law and its codifi cation”.
Th e resolution on genocide adopted by the General Assembly on 11
December 1946 had been adopted unanimously and had proclaimed that
the crime of genocide which shocked the conscience of mankind, was
contrary to the aims and principles of the United Nations. Th e attitude of
mind which had prompted the adoption of that resolution must continue
to prevail in the counsels of the United Nations. Th e Convention should
be signed by all States and ratifi ed by all parliaments with the least possible
delay in order that that basic human right should be put under the
protection of international law.
Th e meeting rose at 5.50 p.m.
Annex 15
Annex 16
UN Human Rights Council, Detailed findings of the Independent International Fact-Finding Mission
on Myanmar, UN Doc. A/HRC/42/ CRP.5 (16 September 2019) (additional excerpts to MG,
Vol. III, Annex 49)
Annex 16
GE.
Human Rights Council
Forty-second session
9-27 September 2019
Agenda item 2
Human rights situation that require the Council’s attention
Detailed findings of the Independent International Fact-Finding
Mission on Myanmar*
* Information complementary to that contained in the official report (A/HRC/42/50), submitted to the
Human Rights Council pursuant to resolution 39/2. Reproduced as received, in the language of submission only.
A/HRC/42/CRP.5
Distr.: General
16 September 2019
Original: English
A/HRC/42/CRP.5
2
Contents
Page
I. Executive Summary ......................................................................................................................... 5
II. Introduction ......................................................................................................................................
III. Mandate and follow up the Human Rights Council resolution 39/2 ................................................ 9
A. Interpretation of the Mandate .................................................................................................. 9
B. Methodology ............................................................................................................................ 9
C. Legal Framework ..................................................................................................................... 9
1. Economic, social and cultural rights ............................................................................... 10
2. Rules of State responsibility ............................................................................................ 11
IV. The situation of the Rohingya .......................................................................................................... 17
A. Citizenship ............................................................................................................................... 1
1. National Verification Cards ............................................................................................. 20
2. Annual Household lists ................................................................................................... 31
3. Conclusions and legal findings ........................................................................................ 32
B. Land clearance destruction, confiscation and construction ...................................................... 33
1. The situation of the internally displaced.......................................................................... 34
2. Conclusions and legal findings
C. Restrictions ..............................................................................................................................
1. Restrictions on movement ...............................................................................................
2. Access to livelihoods ....................................................................................................... 52
3.. Conclusions and legal findings ........................................................................................ 56
D. Security and safety ................................................................................................................... 5
E. Forced or compulsory labour ................................................................................................... 59
F. The repatriation process ........................................................................................................... 62
1. Historical factors ............................................................................................................. 65
2. Current repatriation efforts .............................................................................................. 66
G. Conclusions and legal findings: the impossibility of return ..................................................... 67
1. Crimes against humanity of persecution and other inhumane acts ..................................
2. Genocide under the rules of State responsibility/Inference of genocide ......................... 70
3. State attribution for underlying acts of genocide ............................................................. 70
4. Establishing genocidal intent ........................................................................................... 72
5. Failure to investigate and punish genocide...................................................................... 72
6. Failure to enact legislation .............................................................................................. 75
7. Continuing genocidal intent ............................................................................................ 76
Serious risk of genocide .................................................................................................. 76
9. Impossibility of return .....................................................................................................
10. Business and development assistance in Rakhine State .................................................. 79
V. The conflict between the Tatmadaw and the Arakan Army .............................................................
Annex 16
A/HRC/42/CRP.5
3
A. Introduction .............................................................................................................................
B. The Arakan Army .................................................................................................................... 2
C. Violations by the Tatmadaw .................................................................................................... 6
1. Unlawful attacks by the Tatmadaw .................................................................................
2. Military use of and damage to schools and religious sites .............................................. 99
3. Torture, arbitrary detention and deaths in custody .......................................................... 104
4. Forced labour................................................................................................................... 112
5. Humanitarian impacts of the conflict .............................................................................. 115
D. Abuses by the Arakan Army .................................................................................................... 120
1. Forced labour................................................................................................................... 120
2. Abductions and deprivation of liberty ............................................................................. 121
3. Seizure of property and extortion .................................................................................... 122
4. Conclusions and legal findings ........................................................................................ 123
E. Gendered impacts .................................................................................................................... 123
F. Landmines ............................................................................................................................... 127
G. Threats to freedom of expression, association and the press ................................................... 125
1. Freedom of expression, and crack-down on local media................................................. 126
2. Internet shutdown in Rakhine and Chin State ................................................................. 127
3. Conclusions and legal findings ........................................................................................ 129
VI. The situation in northern Myanmar .................................................................................................. 132
A. Introduction ............................................................................................................................. 132
B. Violations by the Tatmadaw and Tatmadaw sponsored militia ............................................... 135
1. Tatmadaw attacks and other military operations causing deaths and injury of civilians . 135
2. Torture and other cruel, inhuman and degrading treatment or punishment ..................... 137
3. Forced or compulsory Labour ......................................................................................... 142
4. Sexual and gender-based violence................................................................................... 143
C. Patterns of abuses by EAOs ..................................................................................................... 146
1. EAO attacks..................................................................................................................... 146
2. Putting civilians in harm’s way ....................................................................................... 147
3. Treatment of Christian minorities ................................................................................... 149
4. Forced recruitment .......................................................................................................... 149
5. Child recruitment ............................................................................................................. 150
6. Abductions, deprivatiaon of liberty and cruel treatment ................................................. 151
7. Sexual and gender-based violence................................................................................... 152
Conclusions and legal findings ........................................................................................ 152
D. Landmines, improvised explosive devices and explosive remnants of war ............................. 155
1. Conclusions and legal findings ........................................................................................ 156
E. Displacement, livelihoods and land ......................................................................................... 15
1. Return of IDPs ................................................................................................................. 160
2. The Vacant, Fallow and Virgin Lands Management Act ................................................ 161
Annex 16
A/HRC/42/CRP.5
4
3. Effects on IDPs................................................................................................................ 163
4. Conclusions and legal findings ........................................................................................ 165
F. Situation in northern Myanmar requiring monitoring: the Kokang Self-Administered Zone .. 167
VII. Renewed human rights violations against the ethnic Karen ............................................................. 170
A. Background .............................................................................................................................. 170
B. Recent Tatmadaw operations ................................................................................................... 171
C. Human rights impact of the road construction project ............................................................. 172
D. Killings by the Tatmadaw ........................................................................................................ 173
E. Return of Karen refugees ......................................................................................................... 174
F. Conclusions and legal findings ................................................................................................ 175
VIII. Conclusions and Recommendations ................................................................................................. 175
A. The situation of the Rohingya .................................................................................................. 176
B. The situation of the ethnic Rakhine ......................................................................................... 177
C. The situation in northern Myanmar .........................................................................................
D. Recommendations ....................................................................................................................
1. To the Government of Myanmar .....................................................................................
2. To the United Nations and the international community ................................................. 179
3. To non-State armed groups in Myanmar .........................................................................
Annexes
I. Correspondence with the Government of the Republic of the Union of Myanmar ..........................
Annex 16
A/HRC/42/CRP.5
5
Acronyms
AA Arakan Army
ARSA Arakan Rohingya Salvation Army
ASEAN Association of Southeast Asian Nations
CAT Convention against Torture
CEDAW Convention on the Elimination of All Forms of Discrimination against
Women
CESCR Committee on Economic, Social and Cultural Rights
CPED International Convention for the Protection of All Persons from Enforced
Disappearance
CRC Convention on the Rights of the Child
CRPD Convention on the Rights of Persons with Disabilities
EAO Ethnic Armed Organization
FPNCC Federal Political Negotiation and Consultation Committee
GAD General Administration Department
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICERD International Convention on the Elimination of All Forms of Racial
Discrimination
ICESC International Covenant on Economic, Social, and Cultural Rights
ICRC International Committee of the Red Cross
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former Yugoslavia
IHL International Humanitarian Law
ILO International Labour Organization
KIA Kachin Independence Army
LIB Light Infantry Battalion
LID Light Infantry Division
MNDAA Myanmar National Democratic Alliance Army
NLD National League for Democracy
OHCHR Office of the United Nations High Commissioner for Human Rights
SGBV Sexual and Gender Based Violence
SLORC State Law and Order Restoration Council
SPDC State Peace and Development Council
SSA-N Shan State Army North
SSA-S Shan State Army South
TNLA Ta’ang National Liberation Army
UDHR Universal Declaration of Human Rights
UNHCR Office of the United Nations High Commissioner for Refugees
UNITAR United Nations Institute for Training and Research
UNOSAT UNITAR’s Operational Satellite Applications Programme
USDP Union Solidarity and Development Party
UWSA United Wa State Army
WFP World Food Programme
MaBaTha Association for the Protection of Race and Religion
MaHaNa Sangha Maha Nayaka Committee
NaSaKa Border Area Immigration Control Headquarters
NaTaLa Ministry for Development of Border Areas and National Races “model
villages”
SaYaPa Myanmar Intelligence Office
Annex 16
A/HRC/42/CRP.5
9
a range of restrictions, including on humanitarian access, that have led to significant
displacement of the civilian population.
24. While each of the situations of the ethnic minorities in Myanmar is distinct with its
own facts and dimensions, a common thread underlies the situation of each of the ethnic
groups. All ethnic groups highlighted in this report have suffered human rights violations
and violations of international humanitarian law at the hands of the Tatmadaw. They have
experienced the insecurity and hardship that prevail wherever the Tatmadaw operates. They
have all been driven off their traditional lands and subjected to forms of marginalisation as
a result of the Tatmadaw’s policies.
25. All the ethnic minority communities that the Mission investigated have been
deprived of justice for the serious human rights violations perpetrated against them. For this
reason, the Mission found it necessary to highlight once again the situation of ethnic
minorities in Myanmar, to provide an independent and impartial assessment of the
violations committed against them, and to call on the Government of Myanmar and the
international community to put a halt to these violations by finally breaking the cycle of
impunity that protects the Tatmadaw and leads to further violence in the future.
II. Introduction
26. This report complements the Mission’s report submitted to the Human Rights
Council pursuant to resolution 39/2,2 by which the Council extended the mandate of the
Independent International Fact-Finding Mission on Myanmar (“the Mission”). The Council
requested the Mission to present a final report on its activities to the Council at its fortysecond
session.
27.
highlights the situation of ethnic groups in Rakhine, Chin, Kayin, Kachin and Shan States,
focussing on conflict-related human rights violations and abuses and violations of
international humanitarian law. It also provides a legal analysis of the situation of the
which Myanmar is a party. The Mission further presents its findings on the situation of the
conflict between the Tatmadaw and the Arakan Army since the beginning of 2019 and the
latest developments in northern Myanmar.
The Mission comprised three experts: Marzuki Darusman (Indonesia, chair),
Radhika Coomaraswamy (Sri Lanka) and Christopher Sidoti (Australia).
29. The Mission regrets the continuing lack of cooperation from the Government of
Myanmar, despite the numerous appeals made by the Human Rights Council and the
Mission. During the reporting period, the Mission requested to meet with the Permanent
Representative of Myanmar in Geneva on two occasions and requested country access on
12 February 2019. It sent a detailed list of questions pertaining to the mandate of the
al response to any of its
communications. The Mission’s draft main findings were shared with the Government prior
to its public release, providing an opportunity to comment or make factual corrections. No
response was received. This conference room paper, containing the detailed findings of the
Mission in relation to conflict-related and other human rights violations, was also shared
with the Government on 11 September 2019. No response was received. The Mission’s
letters are in annex 2.
2 A/HRC/42/50.
Annex 16
A/HRC/42/CRP.5
189
3. Letter sent to the Permanent Mission of the Republic of the Union of Myanmar on 31
July 2019
Annex 16
A/HRC/42/CRP.5
190
4. Letter sent to the Permanent Mission of the Republic of the Union of Myanmar on 11
September 2019
Annex 16
Annex 17
UN OHCHR, Human Rights Council Intersessional Meeting on the Prevention of Genocide:
Statement by Nada Al-Nashif, Deputy High Commissioner for Human Rights (10 February 2021)
Annex 17
Human Rights Council Intersessional Meeting on the
Prevention of Genocide<br/> Statement by Nada Al-
Nashif, Deputy High Commissioner for Human Rights
ohchr.org
10 February 2021, Geneva
Excellencies,
Colleagues an d friends,
I am honoured to introduce this intersessional meeting and recognise the efforts of the
Republic of Armenia and the other sponsors of resolution 43/29 to keep the prevention of
genocide on the agenda of the Human Rights Council.
Two years ago, we celebrated the 70th anniversary of the Convention on the Prevention and
Punishment of the Crime of Genocide. Adopted on 9 December 1948 by the United Nations
General Assembly, it was the first international treaty of a new era characterised by a vision
of the world where the atrocities committed during the Second World War would never be
tolerated again. It was followed the next day by the adoption of the Universal Declaration of
Human Rights - ensuring the link between the prevention of genocide and the protection,
respect and fulfilment of human rights.
The Secretary-General referred to the Universal Declaration of Human Rights last year when
presenting his “Call to Action for Human Rights” saying “there is no better guarantee of
prevention than for Member States to meet their human rights responsibilities”.
Sadly, experience – from Rwanda to Iraq and Myanmar– has shown that most mass
atrocities find roots in long-standing civil and political violations, as well as discrimination,
economic inequalities, social exclusion, and denial of economic, social and cultural rights.
From Tutsis to Yazidis or Rohingyas, minorities have experienced severe and targeted denial
of their most basic human rights.
Excellencies,
As the President of the Human Rights Council has just recalled, early signs of many of the
recent mass atrocities, including genocide, have been detected and made public by Human
Rights Council mechanisms, as well as by Treaty Bodies and the Office of the High
Commissioner for Human Rights. No doubt that the human rights machinery has played a
great early warning role.
Yet, sounding early warning remains insufficient. In this connection, the Secretary-General
suggested in his last report on the prevention of genocide to this Council (A/HRC/41/24), ,
that greater use can be made of the Universal Periodic Review to enhance this. Last year,
three rapporteurs also made recommendations to the Human Rights Council with a view to
strengthening its preventive mandate, especially through increased cooperation with the
Special Adviser on the Prevention of Genocide (A/HRC/43/37). To engage in building robust
linkages between the New York based bodies and the various parts of the human rights
machinery located in Geneva is certainly crucial, and should be explored.
However, as emphasized by the Special Rapporteur on the promotion of truth, justice,
reparation and guarantees of non-recurrence and the Special Adviser on the Prevention of
Genocide, in a joint study they presented in 2018 to the Council (A/HRC/37/65), it is
important to move the focus of preventive work “upstream.” There needs to be a consistent,
coherent approach that identifies and tackles the seeds of hatred before they can grow – or be
cultivated – into the resentments and bitter divisions that can escalate into conflict.
In this respect, the United Nations human rights system contributes to long term prevention
by identifying the root causes and accelerators of serious human rights violations, including
in the socio-economic sphere; by collecting information on [human rights] violations;
identifying alleged perpetrators; and by advocating for and supporting appropriate
accountability and transitional justice solutions.
Excellencies,
Accountability is critical – not only because it provides justice for victims and punishment for
perpetrators. A culture of accountability and the fair and equal administration of justice are
catalysts for the rule of law and a culture of respect for human rights. They allow addressing
grievances and facilitate solutions to their structural roots. Forcefully combating impunity in
all its forms is thus central to ending genocide and other mass atrocities. Prevention and
punishment – the explicitly stated twin aims of the Genocide Convention – can never be seen
in isolation from each other. Punishment – with its functions of deterrence and the
enforcement of rights - is key to prevention.
States have the primary responsibility to deliver justice and prevent human rights violations
and atrocity crimes. The United Nations – in the first instance this Office – can support them
through building cultures of accountability in practice. International human rights law
underscores the need for States to conduct effective, prompt, thorough and impartial
investigations as well as prosecutions; and to ensure access to justice and effective remedies
for victims. The United Nations approach embraces all these steps from fact-finding exercises
through to judicial processes.
In cases where a State is unwilling or unable to deliver justice, the International Criminal
Court (ICC) can take over. In this sense, the Court is a central pillar of the work to punish,
and therefore help prevent, the gravest of international crimes.
Annex 17
States that have not yet acceded to the Rome Statute should consider it. States should also
consider how they can contribute to accountability for atrocity crimes committed in other
States, including through supporting the work of the United Nations or exercising universal
jurisdiction – as we saw with the landmark case brought by The Gambia against Myanmar
before the ICC on the basis of alleged violations of the Genocide Convention. . It will certainly
increase the understanding of the role that States must play in preventing and punishing acts
of genocide committed beyond their frontiers.
Excellencies,
Effective accountability must encompass the need to acknowledge and take responsibility for
the violations of victims’ rights so that their rights can be restored and their entitlement to
remedy satisfied. Victims have rights to truth, justice, reparation and a comprehensive
package of guarantees of non-recurrence, which will assist in preventing future crimes.
There is a powerful link between prevention and truth-seeking, the role of memory and
longer-term efforts of education, notably the teaching of history. A country's approach to past
atrocities can be transformative – as we have seen repeatedly. Broader accountability
measures can assist this transformation to an equitable and just future. It must reach to —
but also beyond — the specific crimes committed, and address systemic deficiencies in State
structures that have enabled serious human rights violations and abuses.
It is only by inscribing accountability in a broader transformative agenda that it can fully
realize its preventive potential.
I thank you and look forward to your insightful deliberations.
Annex 17
Annex 18
William A. Schabas, Genocide in International Law (Cambridge University Press 2000)
Annex 19
Shabtai Rosenne, The Law and Practice of the International Court, 1920-2005
(Martinus Nijhoff Publishers 2006)
Annex 19
THE LAW AND PRACTICE OF THE INTERNATIONAL
COURT, 1920-2005
VOLUME I
THE COURT AND THE UNITED NATIONS
The Law and Practice of the
International Court
1920-2005
Fourth Edition
VOLUME I
THE COURT AND THE UNITED NATIONS
SHABTAI ROSENNE
With the Assistance of
Yaël Ronen
MARTINUS NIJHOFF PUBLISHERS
LEIDEN/BOSTON
Annex 19
A C.I.P. Catalogue record for this book is available from the Library of Congress.
ISBN 90-04-13958-3 (Set)
ISBN 90-04-15019-6 (Vol. I)
ISBN 90-04-15020-x (Vol. II)
ISBN 90-04-15021-8 (Vol. III)
ISBN 90-04-15022-6 (Vol. IV)
Printed on acid-free paper.
© 2006 Koninklijke Brill NV, Leiden, The Netherlands
Koninklijke Brill NV incorporates the imprints Brill Academic Publishers, Martinus Nijhoff
Publishers and VSP.
http://www.brill.nl
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system,
or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming,
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Publishers provided that the appropriate fees are paid directly to The Copyright Clearance
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Printed and bound in The Netherlands
Annex 19
10
QUALIFICATION TO BE A PARTY IN A CASE:
JURISDICTION RATIONE PERSONAE
II.163. INTRODUCTORY. This chapter addresses the primary element in
the Court’s jurisdiction to determine any case, the Court’s personal
jurisdiction. The Court’s jurisdiction ratione materiae follows from the
interpretation and application of the title of jurisdiction in relation to
the dispute before the Court. There are two distinct conditions for
jurisdiction ratione personae. The first is that only States have access
to the Court in a contentious case, in any capacity – as principals in
litigation, as potential interveners, or for any other purpose. The
second is that all the States concerned have given their consent to the
exercise by the Court of jurisdiction in the particular case (consent ad
litem).
Although the phrase ‘access to the Court’ does not appear in the
Statute, it is used (instead of more abstract concepts such as
‘capacity’) to describe the matters regulated in Articles 34 and 35 of
the Statute, that is the qualifications required of any ‘party’ in a
contentious case and of other international persons to which the Court
shall be ‘open’.
Statehood is the essential prerequisite for any entity to be a party in
any contentious case in the Court, and that precedes the consent that the
Court should decide the particular case. Article 34, paragraph 1, of the
Statute lays down the fundamental rule: ‘Only States may be parties in
Annex 19
cases before the Court.’1 It declares in general terms the basic condition
ratione personae to be met before the Court can exercise any jurisdiction
whatsoever.
Accordingly, capacity to be a party in a contentious case is reserved
only to States (as the term is understood in the context and practice of
the United Nations). This statehood has to be supplemented by formal
conditions establishing a legal link of the State to the Statute of the
Court. That link can be membership in the United Nations (of which
the Court is a principal organ), participation in the Statute without
membership in the United Nations, or if a State is not a party to the
Statute some other ad hoc acceptance of the Statute and the collateral
obligations of the Charter according to terms indicated by the Security
Council. Only a State meeting one of these formal conditions has
access to the Court for any purpose or in any capacity whatsoever. The
Court cannot entertain a contentious case against a respondent State
that is not similarly qualified. The Court cannot admit as an intervener
in any capacity an entity that is not a State in the United Nations sense.
The Court has the power to decide whether an entity is qualified to
participate in any way in a contentious case The Court’s duty to
establish that this preliminary condition is met is independent of any
expression of the will of either party. As the Court has said:
[I]t is the view of the Court that a distinction has to be made between a
question of jurisdiction that relates to the consent of a party and the
question of the right of a party to appear before the Court under the
requirements of the Statute, which is not a matter of consent. The question
is whether as a matter of law [italics in original] Serbia and Montenegro
was entitled to seise the Court as a party to the Statute at the time when it
588 Chapter 10. Qualification to be a Party in a Case
1 Art. 34 of the Statute of the Permanent Court provided in its English text that only
States ‘can’ be parties (seul les Etats ... ont qualité pour se présenter devant la Cour). The
change from ‘can’ to ‘may’ (the French text in this respect remaining unchanged) was made
by the Drafting Committee of the Washington Committee of Jurists at a late stage of its
work, to ensure better concordance with the French. 14 UNCIO 603, 666. The French
expression se presenter is broader than the English may be parties. Practice has followed
the more embracing French version and denies to any entity other than a State any right to
appear before the Court in contentious cases, subject to Article 43, the Rules of Court (as
amended in 2005), see ch. 26, §II.358. Slight relaxations are occasionally found in advisory
cases. See ch. 30, §§ III.407, 411. No comment on possible discordance between the
English and French texts appears in the discussion of Art. 34 in the ILOAT (UNESCO) adv.
op. [1956] at 85. Art 34, paras. 2 and 3, address questions relating to the position of
international organizations in litigation between States. See § II. 171 below.
Annex 19
instituted the proceedings in these cases. Since the question is independent
of the views or wishes of the Parties, even if they were now to have arrived
at a shared view on the point, the Court would not have to accept that view
as necessarily the correct one. The function of the Court to enquire into the
matter and reach its own conclusion is thus mandatory upon the Court
irrespective of the consent of the parties and is in no way incompatible with
the principle that the jurisdiction of the Court depends on consent.2
And:
[T]he question whether Serbia and Montenegro was or was not a party to
the Statute of the Court at the time of the institution of these proceedings
is fundamental; for if it were not such a party, the Court would not be open
to it under Article 35, paragraph 1, of the Statute. In that situation, subject
to any application of paragraph 2 of that Article, Serbia and Montenegro
could not have properly seised the Court, whatever title of jurisdiction it
might have invoked, for the simple reason that Serbia and Montenegro did
not have the right to appear before the Court.
The Court can exercise its judicial function only in respect of those
States which have access to it [à l’égard des seuls Etats auxquels elle est
ouverte] under Article 35 of the Statute. And only those States which have
access to the Court can confer jurisdiction upon it.
It is the view of the Court that it is incumbent upon it to examine first
of all the question whether the Applicant meets the conditions laid down
in Articles 34 and 35 of the Statute and whether the Court is thus open to
it. Only if the answer to that question is in the affirmative will the Court
have to deal with the issues relating to the conditions laid down in Articles
36 and 37 of the Statute of the Court.3
Article 35, paragraph 1, completes Article 34, paragraph 1, by providing
that the Court shall be open (est ouverte) to the States parties to the
Statute. Article 35 (read together with Article 93 of the Charter) goes on
to particularize the application of the general rule regarding access to
the Court for other States which are not members of the United Nations
§ II.163. Introductory 589
2 Legality of Use of Force cases, [2004] 15 December, case against Belgium (para. 36)
and the equivalent paragraph in the other seven judgments. The Court here referred to an
earlier pronouncement in the Application of the Genocide Convention (Prov. Meas.) case,
[1993] 3, 11 (paras. 14 ff.). On the citation of the Legality of Use of Force cases in this
volume, see ch. 9, § II.147 n. 1.
3 Ibid. (para. 46).
Annex 19
(paragraphs 2 and 3). The fact that a State meets the conditions of
Article 35 does not confer jurisdiction on the Court over that State in a
particular case. For the Court to be able to exercise jurisdiction in a case
in relation to a given State, Articles 36 and 37 apply, and they require an
element of definite consent on the part of the States concerned that the
Court should decide that particular case (consent ad litem). It is that
element of a State’s express consent that finally constitutes jurisdiction
ratione materiae, thus completing the personal requirements for the
Court to exercise jurisdiction. The matters discussed in this chapter are
firstly the pre-conditions and secondly the conditions for jurisdiction
ratione personae.
From the general rule enunciated in Article 34, paragraph 1, of the
Statute it follows that no international organization, whether
intergovernmental or non-governmental, may be a party in a contentious
case before the Court, or may directly intervene in a contentious case
within the concept of either of those provisions of the Statute (see §§
II.171, 172 below). In the same way no individual, whether a natural
person or a juridical person, may be a party or take any ancillary part in
any contentious case in the Court (see § II.173 below). This means that
in no case can the judgment of the Court be directly binding qua
judgment on any legal person other than a State, so that no individual is
in a position to take any steps, on the international level or on the
national level, to secure compliance with a judgment in a contentious
case.4 That is not the same as saying that the Court has no competence
in its judgment to give a construction of the legal position of a State,
including its legal position in regard to entities other than States. In
effect it frequently does this, particularly when dealing with an
individual’s claim espoused by a State in exercise of its right of
diplomatic protection. However, thanks to the restrictive interpretation
590 Chapter 10. Qualification to be a Party in a Case
4 Cf. Committee of United States Citizens Living in Nicaragua v Reagan (1988), 85 ILR
249, 258 (United States Court of Appeals, District of Columbia Circuit). Fuller in ch. 4, §
I.55. A judgment is of course binding on the State as such. If any of the organs of the State
should adopt decisions that are incompatible with the State’s obligations under the combined
Charter and Statute, the international responsibility of that State could be engaged under the
general rules of State responsibility. Art. 4 of the International Law Commission’s draft
articles on the responsibility of States for internationally wrongful acts states that the conduct
of any State organ shall be considered an act of that State under international law whether the
organ exercises legislative, executive, or judicial or any other functions. In para. (6) of its
commentary on that proposal, the International Law Commission explained that the language
of Art. 4 covers the principle of the separation of powers. 56 GAOR Sup. 10 (A/56/10) ch. V.
Annex 19
given to Article 34, paragraph 1, the individuals concerned in such cases
have no right of direct access to or right of audience before the Court.5
There are many who question whether this meets the needs of the good
administration of international justice in current conditions.
The corresponding provision in Article 34 of the Statute of the
Permanent Court referred to ‘States or Members of the League of
Nations’. In 1920 the international and constitutional status of the
Dominions of the British Empire and of India was not settled, although
they were parties to the Peace Treaties of 1919, were members of the
League of Nations and signatories of the Protocol of Signature of the
Statute of the Permanent Court. The wording of Article 34 assured their
participation in that Statute. In fact, not one of those entities was ever
a party in any case before that Court. The Committee of Jurists which
prepared the Statute of the Permanent Court was careful to formulate
what became Article 34 ‘without prejudice to any subsequent
development’.6 In 1945 the international status of several participants
in the San Francisco Conference was ambiguous or anomalous. That
included the Commonwealth of the Philippines (as it was then known),
the Byelorussian SSR and the Ukrainian SSR, recognized as original
members of the United Nations – their full and universally recognized
independence came later, in 1991.7
It is in this aspect of the law relating to litigation in the International
Court that the classic concepts of public international law have exerted
their greatest influence. The result is that the provisions about to be
addressed have for a long time been commonly regarded as the most
out of tune with modern international requirements. According to the
classic view,
§ II.163. Introductory 591
5 For discussion of the problem of the State as dominus litis in this type of case, see the
Lighthouses arbitration (1956), XII RIAA 165; 23 ILR 669; Stuyt, Survey 412. And compare
the distinction between negotiations by the individuals and negotiations by States for the
settlement of a dispute out of Court, in the Barcelona Traction (New Application) (Prel. Objs.)
case, [1964] 6, 22.
6 PCIJ, Procès-verbaux 723 (1920). For a reading of Art. 34 of the present Statute as
referring to ‘States or United Nations members’, see R. Russell and J.E. Muther, A History
of the United Nations Charter: The Role of the United States 1940-1945 873 (1958).
7 Ibid. at 351 n. 3. On the dissolution of the USSR and the subsequent independence of
Belarus and Ukraine, Russia and these two former members of the Soviet Union automatically
remained members of the United Nations. No formality of ‘admission’was required. The other
individual components of the Soviet Union and of other dissolved federal States of Eastern
Europe, were admitted individually into the United Nations.
Annex 19
International law is primarily concerned with the rights and duties of
States and not with those of other persons;... States only possess full
procedural capacity before international tribunals.8
However, the theory that there exist other international persons beside
States has long been gaining ground. In 1949 the Court itself
recognized that international organizations, and above all the United
Nations, can and do possess international personality, so as to be
capable of advancing international claims. As the Court said:
The subjects of law in any legal system are not necessarily identical in their
nature or in the extent of their rights, and their nature depends upon the needs
of the community. Throughout its history, the development of international
law has been influenced by the requirements of international life, and the
progressive increase in the collective activities of States has already given
rise to instances of action upon the international plane by certain entities
which are not States. This development culminated in the establishment in
June 1945 of an international organization whose purposes and principles are
specified in the Charter of the United Nations. But to achieve these ends the
attribution of international personality is indispensable.9
This does not mean that these international organizations possess ‘full
procedural capacity before international tribunals’ including the Court.
They do not as far as the Court is concerned.
From the premise that only States enjoy full procedural capacity
before international tribunals, for the International Court of Justice the
application of Article 35 has led to further distinctions that have to be
made. Current regulatory texts distinguish between States members of
the United Nations, States not members of the United Nations that are
parties to the Statute of the Court, and States not members of the
United Nations that are not parties to the Statute of the Court. All these
States have full procedural capacity, both as principals and as
intervening parties. However, the conditions required for access to the
Court by a State in each of these three categories are not identical. On
592 Chapter 10. Qualification to be a Party in a Case
8 L. Oppenheim, I International Law 20 (8th ed. by H. Lauterpacht, 1955). Contrast
this with the following: ‘International law is the body of rules which are legally binding on
states in their intercourse with each other. These rules are primarily those which govern the
relations of states, but states are not the only subjects of international law.’ I Oppenheim’s
International Law, Peace 4 (9th edn. by R. Jennings and A. Watts, 1992).
9 Reparation adv. op. [1949] 174, 178.
Annex 19
the other hand, the principle of the equality of States before the Court
as regards the juridical consequences deriving from resort to the Court
is fully applicable to States in all three categories. The main purpose of
the different conditions that have been laid down for the different
categories is to ensure this equality. In practice the equality of States
before the Court refers, apart from the normal procedural equality,
primarily to the obligations which the Charter imposes upon member
States in regard to compliance with the decisions of the Court, and their
rights of access to other organs of the United Nations in this
connection, as explained in chapter 4.
Both in the time of the Permanent Court and in the period of the
United Nations, Article 34, paragraph 1, has been interpreted as referring
only to independent States. Nevertheless, the question arises whether
peoples of territories enjoying a recognized international standing and
possessing sufficient treaty-making capacity are not eligible to sustain
proceedings before the Court. Even before the decolonization process
had taken place, international practice did not absolutely deny them
procedural capacity before international tribunals.10 The emergence as a
feature of the decolonization process of what are termed ‘self-governing
associated States’, semi-independent States in free association with an
independent State but with some measure of control over their foreign
policy and enjoying some degree of treaty-making capacity points to the
need for reconsideration of the type of entity eligible for recourse to the
Court without necessarily being a party to the Statute.11 This could be
particularly relevant to the application of Article 35, paragraph 2, of the
Statute (see § II.168 below). This provision does not limit the rights it
gives only to independent States; though this has been the consistent
practice hitherto.
§ II.163. Introductory 593
10 For example, the Levant States under French Mandate (Syria and Lebanon) together
with Iraq, Palestine and Transjordan under British Mandate were parties to the Ottoman Public
Debt arbitration (1925), held pursuant to Arts. 46 and 47 of the Treaty of Lausanne (1923). I
RIAA 531; Stuyt, Survey 478; in the Radio-Orient Company arbitration (1940) the Levant
States under French Mandate were parties against Egypt. III RIAA 1873; Stuyt, Survey 415.
11 The question arises in an acute form under the United Nations Convention on the
Law of the Sea of 1982. 1183 UNTS 3. Its participation clause, Art. 305, takes into account
these new forms of semi-independence following the decolonization process on the basis
of General Assembly Res. 1514 (XV), 14 December 1960. It is not clear, however, if those
entities will enjoy access to the Court, whether as principal parties or as interveners, in
accordance with the complicated provisions of Part XV (Arts. 279 to 299) of that
Convention. See further University of Virginia, Center for Oceans Law and Policy, V The
United Nations Convention on the Law of the Sea: A Commentary 177 (1989).
Annex 19
Four cases brought before the present Court illustrate the need for a
new approach to this question. In each case a metropolitan State was a
party to litigation partly on its own behalf and partly on behalf of a semiindependent
political unit which, it is arguable, enjoys some
recognizable international personality as a State even though not as an
independent State. In the U.S. Nationals in Morocco case, the applicant
government, France, specifically stated, in answer to a question from the
Court, that the French Republic was proceeding in the case both on its
own account and as Protecting Power in Morocco, the judgment of the
Court to be ‘binding upon France and Morocco’. In its judgment the
Court recorded that ‘Morocco, even under the Protectorate, has retained
its personality as a State’,12 although it nowhere explicitly mentioned
that the judgment was binding on Morocco, merely quoting its earlier
order which recited the French declaration to that effect. In the
Minquiers and Ecrehos case, the Government of the United Kingdom
was espousing the claim of the Island of Jersey, and the Attorney-
General of the Island of Jersey was one of the British counsel.13 In the
Jan Mayen case, the Greenland Home Rule Authority was represented
in the Danish delegation, and its representative addressed the Court.14 In
the Request for Examination case the Government of New Zealand
expressly stated that it was also representing the dependent territories of
the Cook Islands, Niue and Tokelau, since ‘New Zealand’s acceptance of
the Statute of the Court embraces these areas of the Pacific’.15 Practice
of States before the Permanent Court was similar.16
594 Chapter 10. Qualification to be a Party in a Case
12 [1952] 176, 185.
13 [1953] 47. The judgment does not draw attention to this detail. And see the
resolution of the States of Jersey of 14 September 1948 expressing agreement with the view
of His Majesty’s Government that the question should be referred to the Court. II Pleadings
20. And cf. the opening remarks of Mr Harrison, Attorney-General of Jersey, ibid. 146: ‘I
represent the Island of Jersey... and it is Jersey which is immediately and directly affected
by these proceedings.’
14 [1993] 38.
15 See the statement of the representative of New Zealand in CR 95/19 at p. 24. The
populations of the Cook Islands and Niue chose association with New Zealand as their
preferred form of decolonization. The Cook Islands is a party to the Convention on the Law of
the Sea, Niue is a signatory of that Convention, and as regards Tokelau, New Zealand now
regards all treaty actions as extending to that territory as a non-self-governing territory of New
Zealand. That Convention was one of the instruments invoked by New Zealand in that case.
16 Cf. for instances in which metropolitan powers engaged in litigation in the Permanent
Court in respect of dependent territories – colonies, protectorates, territories held under League
of Nations mandate – the Mavrommatis, Société Commerciale de Belgique, Oscar Chinn and
Phosphates in Morocco cases and the Tunis and Morocco Nationality Decrees adv. op.
Annex 19
Where the dependent territory does not possess adequate treatymaking
capacity, any special agreement or any other formal instrument
accepting the jurisdiction of the Court as applicant or as respondent, or
as intervening party, on behalf of that territorial unit would have to be
concluded with the metropolitan authorities. There seems to be no
objection in principle to recognizing the procedural capacity of a
dependent State before the International Court, at least to some degree
where this is necessary to protect rights under a treaty to which the semiindependent
State is a party – rights both of the territory concerned and
of its people vis-à-vis other contracting parties, and to protect the rights
of the other contracting parties vis-à-vis that territory.
Another consequence of the restriction of access to the Court to
independent States has been the establishment of new tribunals in
situations where a treaty grants rights to semi-independent States or to
individuals, and a procedural standing to uphold those rights. This in
turn requires access to the tribunal as part of the transaction recorded in
the treaty. The outstanding examples are the new International Tribunal
for the Law of the Sea, and especially (but not exclusively) its Sea-Bed
Disputes Chamber, established under Annex VI of the United Nations
Convention on the Law of the Sea of 1982 on the universal level,17 and
the European Court of Human Rights and the Inter-American Court of
Human Rights on the regional level. Claims Tribunals are another
example of this. These developments (other than the Human Rights
bodies) are frequently viewed with disfavour, but are inevitable.
II.164.MEMBERS OF THE UNITED NATIONS. By Article 93, paragraph 1,
of the Charter, all members of the United Nations are ipso facto parties
to the Statute of the Court. That was one of the major innovations on
which the Dumbarton Oaks Proposals insisted and which was introduced
at the San Francisco Conference (see chapter 2, § I.7). Members of the
United Nations fall into two categories: original members under Article
3 of the Charter, and new members under Article 4.18
The qualifications required under Article 3 are either participation in
the United Nations Conference on International Organization (UNCIO,
San Francisco, 1945), or signature of the Declaration of the United
§ II.163. Introductory 595
17 See n. 11 above and the Commentary there mentioned, at 207. On ITLOS see ch. 3,
§ I.32.
18 Cf. 17 UNCIO 329.
Annex 19
Nations of 1 January 1942 before the Conference.19 By Article 3 of the
Charter both types of members are States for all United Nations
purposes. As stated, the international status of some of the original
members of the United Nations was not unambiguously that of an
independent State. The question whether an entity of this type is a
‘State’ from the point of view of general international law is irrelevant
for the purposes of the Charter and the Statute. No organ of the United
Nations, the Court included, is entitled to question such an entity’s
quality as a State, subject to the general principle of rebus sic stantibus.
Admission of new members into the United Nations is effected in
accordance with the requirements and procedure of Article 4 of the
Charter. The new member has to be a peace-loving state which ‘accepts
the obligations contained in the present Charter’. In addition, it has to
be, in the judgment of the Organization, able and willing to carry out the
obligations contained in the Charter. Its admission into the United
Nations is effected by a decision of the General Assembly upon the
recommendation of the Security Council.20 Admission of a new member
into the United Nations is determinative of its statehood for the purposes
of the combined Charter and Statute. The Court’s status of a principal
organ of the United Nations is also relevant in this connection. In the
Application of the Genocide Convention (Preliminary Objections) case,
the Court relied on United Nations decisions – of the General Assembly,
of the Security Council and of the Secretary-General (as depositary of a
multilateral treaty) – regarding the status of the applicant, Bosnia-
Herzegovina, as a State and the status of its Head of State.21
The effective date of membership in the United Nations of original
members is the date of the entry into force of the Charter in accordance
with Article 110, 24 October 1945, or, if the instrument of ratification was
deposited after that date, the date of the deposit of the instrument of
ratification. Deposit of instruments of ratification by all the signatories
596 Chapter 10. Qualification to be a Party in a Case
19 204 LNTS 381.
20 For the interpretation of Art. 4 see the Admission and the Competence of the Assembly
advisory opinions. Admission into an international intergovernmental organization
corresponds to accession in the case of a multilateral treaty.
21 [1996-II] 595, 610, 611, 621 (paras. 18, 19, 44). This follows provisional decisions
to the same effect in the Provisional Measures phase of the case, see n. 2 above. This has
to be distinguished from the Legality of Use of Force cases where the main issue was
whether the applicant State, Serbia & Montenegro (formerly Yugoslavia), was a party to the
Statute at the date of the filing of the applications in those cases. Judgments of [2004]
15 December.
Annex 19
was completed by 27 December 1945.22 As to new members admitted
under Article 4, the effective date of membership is governed by the Rules
of Procedure of the General Assembly and has varied. Originally these
Rules provided that after the applicant had been informed of the decision
of the General Assembly, its membership would become effective on the
date upon which it presented to the Secretary-General an instrument of
adherence to the obligations in the Charter.23 By resolution 116 (II), 21
November 1947, the procedure was altered and now requires the
application for membership to contain the necessary declaration, and
membership becomes effective on the date upon which the General
Assembly takes its favourable decision on the application. This is
incorporated in Rule 138 of the General Assembly’s Rules of Procedure
currently in force.24
II.165. NON-MEMBERS OF THE UNITED NATIONS AS PARTIES TO THE
STATUTE. Given the universality of the United Nations today, the
question of participation in the Statute of States not members of the
United Nations has lost the importance it once might have had.
However, analytical questions have arisen and they may recur.
§ II.164. Members of the United Nations 597
22 13 Department of State Bulletin 679, 1057 (1945). For the implications of Art. 110
of the Charter (on ratification and entry into force in respect of the original members), see
South West Africa (Prel. Objs.) cases, [1962] 319, 335.
23 This was Rule 107 of the Provisional Rules of Procedure for the General Assembly
proposed by the Preparatory Commission (PC/20, 18), and Rule 116 of the Provisional Rules
of Procedure adopted at the first part of the first session of the General Assembly in 1946.
24 A/520/Rev.15 + Amends 1, 2. The acceptance of the obligations contained in the
Charter is formally contained in a document emanating from the treaty-making authority
of the new member. The deposit of the formal instrument has sometimes been effected after
the decision of the General Assembly. This is because the political organs may take their
decision on the basis of a declaration emanating from a proper authority but addressed to
the Secretary-General by cable. For registration of these documents under Art. 102 of the
Charter see ch. 14, § II.242. Before registering the instrument, the Secretary-General
requires the presentation of the formal instrument in due form executed by the Head of
State, Head of Government or Minister for Foreign Affairs; and if someone else executes
the document, that person is required to produce properly executed full powers. In a few
other instances the delay in registration was caused by the wish of several Governments to
replace a declaration submitted several years earlier by a new declaration. See [1964]
UNJYB 249. It is clear that the date of the decision of the General Assembly is the relevant
date. The Court endorsed this practice in the Right of Passage (Prel. Objs.) case, where
Portugal instituted the proceedings shortly after the decision of the General Assembly on
15 December 1955 admitting that country to the United Nations and before a fresh
instrument was deposited on 21 February 1956. 229 UNTS 3. For the implications of Art.
110 of the Charter (on ratification and entry into force in respect of the original members)
in relation to Art. 4, see Aerial Incident of 27 July 1955 case, [1959] 127, 143.
Annex 19
At Dumbarton Oaks it was accepted that although the Court was to
be a principal organ of the United Nations, a State which is not a
member of the Organization could become a party to the Statute of the
Court on conditions to be established in each case by the General
Assembly upon recommendation of the Security Council (see chapter 2,
§ I.7). At the San Francisco Conference, Committee IV/1 explained that
in approving that part of the Dumbarton Oaks Proposals (which now
appears, with editorial changes, as Article 93, paragraph 2, of the
Charter), it had ‘taken into consideration the [then] existing
international situation and the present circumstances of different states,
which requires that the conditions must be determined in each case’. At
the same time it pointed out that this would not preclude the adoption of
uniform conditions as to a number of States.25 Five States – Switzerland,
Liechtenstein, Japan, San Marino and Nauru – became parties to the
Statute under Article 92, paragraph 2, of the Charter.26 Each one of them
has since become a member of the United Nations. The conditions were
initially elaborated by a Committee of Experts of the Security Council.
The General Assembly adopted them without change in resolution 91
(I), 11 December 1946 in the case of Switzerland.27 It followed this
precedent in the other cases, with minor changes.
598 Chapter 10. Qualification to be a Party in a Case
25 13 UNCIO 385. The expression ‘in each case’ apparently means in each instance of
an application being made by a State wishing to become a party to the Statute, and does not
refer to each case which such a State might desire to bring before the Court. During the
1960s there was discussion in the United Nations about what were called ‘mini-States’ and
the possibility of their association with the United Nations, and the relationship of those
States with the Court was also examined. See the Report of the Secretary-General, 21
GAOR Sup. 1A (A/6701/Add.1, para. 166) 1967. No decision was reached then. In 1990-
1993 the European States in question – Andorra, Liechtenstein, Monaco, and San Marino
– were admitted as full members of the United Nations. This was after several newly
decolonized mini-States had been admitted to the United Nations.
26 Resolutions 92 (I), 11 December 1946 (Switzerland), 363 (IV), 1 December 1949
(Liechtenstein), 805 (VIII), 9 December 1953 (Japan), 806 (VIII), 9 December 1953 (San
Marino), 42/21, 18 November 1987 (Nauru). Admission as a party to the Statute
corresponds to accession to a defined part of a multilateral treaty.
27 See discussion at the 78th and 80th meetings of the Security Council on 30 October
and 5 November 1946 and Res. 11 (1946), 15 November 1946. 1 SCOR 2nd series, No. 20
485, No. 22 501. For documentation see S/185, ibid. Sup. 7 157 and S/191, ibid. Sup. 8
1459 (report of the Committee of Experts). On the request of Hyderabad to become a party
to the Statute, see doc. S/996, 11 September 1948 (mimeo). The Secretary-General
attached to that document a note saying that he was not in a position to determine whether
he was required by the rules of procedure to circulate the communication, and that he was
bringing it to the attention of the Security Council ‘for such action as the Council may
desire to take’. No further action was taken on that matter.
Annex 19
The conditions called for the deposit with the Secretary-General of
the United Nations of a duly ratified instrument, by which the State
concerned accepted three specific requirements, namely: (a) general
acceptance of the provisions of the Statute; (b) acceptance of all the
obligations of a member of the United Nations under Article 94 of the
Charter (see chapter 4), including the complementary obligations under
Articles 25 and 103 in so far as relates to Article 94; and (c) an
undertaking to contribute to the expenses of the Court such equitable
amount as the General Assembly might assess from time to time after
consultation with the Government concerned (see chapter 8, § I.110).
Perusal of the debates in the Security Council and in the General
Assembly discloses that, except in the case of Switzerland, the object
of repeated discussion was not the conditions but whether the applicant
was a State which should or could become a party to the Statute. Those
debates all, with the exception of the admission of Nauru, took place in
the context of the political and ideological tensions generated by the
Cold War. Liechtenstein’s application was opposed principally on the
ground that that country does not itself conduct its foreign relations,
from which it was argued that it was not an independent State. The
Soviet Union opposed Japan’s application because at the time it did not
maintain diplomatic relations with that country; and that of San Marino
on the ground that the country was a diminutive State. For those
reasons (and others) the Soviet Union abstained in the Security
Council. Nauru’s application was accepted without debate. Discussion
of this character represents the proper type of political control to be
exercised by the Security Council and the General Assembly over
applications under Article 93, paragraph 2, of the Charter.
The Statute makes no difference of substance between States that
are parties to the Statute by virtue of their membership in the United
Nations and States that are parties to the Statute without being
members of the United Nations.28
None of these resolutions on admission of States not parties to the
United Nations as parties to the Statute makes any provision for deciding
questions concerning the validity or effect of declarations made under
§ II.165. Non-Members of the United Nations as Parties to the Statute 599
28 However, slight differences of a purely technical character existed. Certain
communications required to be sent to all parties to the Statute were, in the case of
members of the United Nations, sent through the Secretary-General. For other States
parties to the Statute, the communications were sent direct by the Registrar in accordance
with arrangements made with the State in question. See ch. 19, § III.294.
Annex 19
them. In accordance with general principles, now embodied in Article 77
of the Vienna Convention on the Law of Treaties of 1969,29 the Secretary-
General, as depositary, is empowered to make a summary and provisional
decision on this aspect upon receipt of the instrument. Subsequently the
Court will decide all such questions under its general jurisdiction.
The earlier remarks concerning the conclusiveness of membership
in the United Nations for statehood for the purposes of the Charter and
the Statute equally apply to the statehood of entities admitted to the
Statute of the Court by the General Assembly on the recommendation
of the Security Council. No organ of the United Nations, including the
Court, may (rebus sic stantibus) question that any such political unit is
a State for the purposes of the Statute, regardless of its status under
general international law.30
Three cases have concerned States parties to the Statute under
Article 93, paragraph 2, of the Charter, Nottebohm, Interhandel and
Phosphate Lands in Nauru. In each of those cases the applicant was a
party to the Statute under Article 93, paragraph 2, and the respondent a
member of the United Nations. The first two cases concerned the
liquidation of economic consequences of the Second World War and
the mutual rights of belligerents and neutrals. The third case related to
the administration of the Trusteeship Agreement over Nauru.31 There
has been no case exclusively between States accessing the Court under
Article 35, paragraph 2.
Admission of non-members of the United Nations as parties to the
Statute has had further consequences from the point of view of the
internal organization and administration of the United Nations. These
consequences emphasize the political character of the decision to admit
an entity as a party to the Statute of the Court. Participation in the Statute
was regarded as evidence of a desire to advance international cooperation.
For example, it became common for the participation clauses
of treaties concluded under the auspices of the United Nations and the
specialized agencies to include a provision to the effect that the
competent organ set up by the treaty should invite non-member States to
accede to that treaty, and in that context participation in the Statute of the
Court was an acceptable criterion for such invitation as an indication of
a desire to advance international co-operation. This pattern was set in the
600 Chapter 10. Qualification to be a Party in a Case
29 1155 UNTS 335.
30 See Sh. Rosenne, ‘Recognition of States by the United Nations’, 26 BYIL 440 (1949).
31 For this settlement, see ch. 9, § II.152 n. 95.
Annex 19
General Assembly’s decision regarding participation in the Convention
on the Prevention and Punishment of the Crime of Genocide, adopted in
resolution 368 (IV), 9 December 1948. This became an accepted formula
both for the participation clause of treaties and for invitations to
international conferences during the period of the Cold War until it was
replaced by the easier ‘all States’ formula.
II.166.CONSEQUENCES OF BEING A PARTY TO THE STATUTE. Parties to the
Statute accept the entire jurisdiction which the Charter and the Statute
establish. This includes the Court’s jurisdiction to settle disputes as to its
jurisdiction (Article 36, paragraph 6), its jurisdiction to indicate
provisional measures of protection in a case of which it is duly seised
(Article 41), its jurisdiction under Article 53 if a party fails to appear or
to defend its case, its jurisdiction in matters of intervention under Articles
62 and 63, and its jurisdiction over requests for the interpretation and the
revision of a judgment under Articles 60 and 61 of the Statute. Although
neither the Charter nor the Statute embodies any provision for the
compulsory mainline jurisdiction as such, a State which is a party to the
Statute accepts the transfer of jurisdiction from the Permanent Court
arising from Article 36, paragraph 5, and Article 37 of the Statute. This
in turn imports the obligation of compliance as set out in Article 94 of the
Charter in place of the corresponding obligation under Article 13 of the
Covenant of the League of Nations. A party to the Statute also accepts the
advisory competence of the Court under Article 65 of the Statute.32
Practice and the requirements of diplomacy have brought out other
consequences. First of all, as appears clearly from the Aerial Incident of
27 July 1955 case, the Charter and Statute are themselves an integral part
of the title of jurisdiction in the broad sense. The Court itself, referring to
the case of a State admitted to the United Nations, has explained that in
seeking and obtaining such admission the State concerned accepts all
(italics supplied) the provisions of the Statute, including Article 36.33
Every State which is a party to the Statute has the right to participate in
the nomination and election of the members of the Court and is included
in the calculation of the absolute majority in the General Assembly
required for election.34 It has the right to take part in the work of the
§ II.165. Non-Members of the United Nations as Parties to the Statute 601
32 Western Sahara adv. op. [1975] 12, 24 (para. 30).
33 Aerial Incident of 27 July 1955 case, [1959] 127, 145.
34 See ch. 6, § I.82 nn. 49, 50.
Annex 19
General Assembly concerned with amendments to the Statute and is
included in the calculation of the number of ratifications required for an
amendment to the Statute to enter into force; it has the right to be
consulted over its share in meeting the expenses of the Court; and in the
Court itself it has the right to invoke the jurisdiction of the Court in
accordance with the general conditions for the exercise of that
jurisdiction; and the rights deriving from Article 94 of the Charter. The
right to apply to the Court has been described as ‘by no means
insubstantial’ since it implies that whatever the outcome, all aspects of a
matter can be discussed in the objective atmosphere of a court of
justice.35 This is so even if the judicial phase terminates in a judgment
declining jurisdiction for one reason or another, since the acceptance of
preliminary objections need not necessarily be regarded as the failure of
judicial settlement. There is in these respects no substantial difference
between the members of the United Nations and the other States which
are parties to the Statute, between the practical implications of paragraph
1 and those of paragraph 2 of Article 93 of the Charter. On the other hand,
no national of a State a party to the Statute but not a member of the
United Nations has been elected as a member of the Court.
However, the case law contains a strong indication that substantive
differences may exist between the original members of the United
Nations under Article 3 of the Charter (now a minority of the members
of the United Nations), and new members which have been admitted
under Article 4, and that there may be relevance in the date upon which
a State became a party to the Statute. In the Aerial Incident of 27 July
1955 case the Court based its decision on the assumption that certain
agreements and understandings had been reached between the States
which participated in the San Francisco Conference, and that while these
agreements could be binding between the signatories of the Charter, that
is the original members, they could not impose obligations upon a State
which had not taken part in the San Francisco Conference.36 That
602 Chapter 10. Qualification to be a Party in a Case
35 Northern Cameroons case, [1963] 15, 29.
36 Aerial Incident of 27 July 1955 case, [1959] 127, particularly at 136-39. It seems to
have been tacitly followed in the South West Africa (Prel. Objs.) cases, [1962] 319 at 334-
35, where the Court stressed that certain obligations deriving from Art. 37 of the Statute
were in that case effectively assumed by all three parties as original members of the United
Nations. However, in the Barcelona Traction (New Application) (Prel. Objs.) case the Court
warmed against arbitrary distinctions not warranted by the text of the Statute, and stated
that in principle phrases such as ‘The parties to the Statute’ must apply equally and
indifferently to cover all those States which at any given time are participants, whatever the
date of their several ratifications, accessions or admissions. [1964] 6, 34.
Annex 19
distinction was first made in the interpretation and application of Article
36, paragraph 5, of the Statute, one of the transitional provisions introduced
into the Statute in 1945 to implement the general decision to maintain
continuity in the administration of international justice. This was followed
in the Military and Paramilitary Activities in and against Nicaragua
(Jurisdiction and Admissibility) case. Here the Court distinguished
between the position of a State which had participated in the San Francisco
Conference and one which had not. In the particular case it found that
Nicaragua’s participation in the Conference and later ratification of the
Charter had the effect of transferring to the regime of the present Statute an
unratified acceptance of the optional clause of the Protocol of Signature of
the Statute of the Permanent Court.37 Although this interpretation is
questionable, the fact that it could have been made is enough to indicate the
possibility of differences in the legal rights and duties between States
parties to the Statute according to whether a State is a party to the Statute
under Article 3 or under Article 4 of the Charter. If it should be found to
have any relevance to other provisions of the Statute, it would follow that a
State which is a party to the Statute under Article 93, paragraph 2, of the
Charter stands in a similar relationship to a State admitted into the
Organization under Article 4.
II.167. WITHDRAWAL FROM THE UNITED NATIONS, SUSPENSION OF
RIGHTS OF MEMBERSHIP AND EXPULSION. The related questions of
withdrawal, suspension of rights of membership and expulsion from
membership in the United Nations were discussed at the San Francisco
Conference in Committee I/2, on the basis of Chapter III of the
Dumbarton Oaks Proposals. This Chapter simply stated that membership
in the Organization should be open to all peace-loving States. Committee
IV/1, which dealt with the Court, did not consider this topic.
On the question of withdrawal from the United Nations (or from
participation in the Statute, a matter not considered by the San Francisco
Conference), the Conference decided not to include any provision in the
Charter either permitting or prohibiting withdrawal from membership in
the United Nations. However, the report of Committee I/2 indicates that
should a member ‘because of exceptional circumstances’ feel
constrained to withdraw, it would not be the purpose of the Organization
to compel it to continue its co-operation in the Organization. While the
Committee did not attempt to spell out what would be the ‘exceptional
§ II.166. Consequences of being a party to the Statute 603
37 [1984] 392, 404 (para. 27). Fuller at ch. 12, § II.196.
Annex 19
Annex 20
Giorgio Gaja, ‘The Role of the United Nations in Preventing and Suppressing Genocide’
in Paola Gaeta (ed.), The UN Genocide Convention: A Commentary
Annex 20
Annex 20
Annex 20
Annex 20
Annex 20
Annex 20
Annex 20
Annex 20
Annex 20
Annex 21
Robert Kolb, ‘The Compromissory Clause of the Convention’ in Paola Gaeta (ed.),
The UN Genocide Convention: A Commentary (Oxford University Press 2008)
Annex 21
Annex 21
Annex 21
Annex 21
Annex 21
Annex 21
Annex 21
Annex 21
Annex 21
Annex 21
Annex 21
Annex 21
Annex 21
Annex 21
Annex 21
Annex 22
Christian Tomuschat, ‘Competence of the Court, Article 36’ in Zimmermann, Tams, Oellers-Frahm,
Tomuschat (eds), The Statute of the International Court of Justice: A Commentary
(3rd edition, Oxford University Press 2019)
Annex 22
Annex 22
Annex 22
Annex 22
Annex 22
Annex 22
Annex 22
Annex 22
Annex 23
Oxford English Dictionary, “to call upon”
Annex 23
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call, v.
Old English (rare), Middle English , Middle English , Middle English , Middle
English , Middle English , Middle English (northern, past participle, perhaps transmission error),
Middle English–1500s , Middle English–1500s , Middle English–1500s , Middle English–1600s
, Middle English–1800s , Middle English– , 1500s , 1500s , 1500s , 1500s–1600s ,
1800s (Irish English (Wexford), past tense); English regional (chiefly northern and north midlands) 1700s
(south-western), 1800s , 1800s , 1800s (past participle), 1800s (present participle),
1800s (present plural), 1800s , 1800s– , 1800s– (south-western), 1800s– (past participle),
1800s– , 1800s– (past participle), 1800s– (south-western), 1800s– (present plural), 1800s–
, 1800s– (present plural), 1800s– (past tense), 1800s– , 1800s– , 1800s– , 1800s–
(present plural), 1900s– ; Scottish pre-1700 , pre-1700 , pre-1700 , pre-1700 , pre-1700
(perhaps transmission error), pre-1700 , pre-1700 , pre-1700 1700s– , pre-1700 1700s– , 1700s–
, 1700s– , 1700s– , 1800s– (Shetland), 1900s– , 1900s– .
Probably a borrowing from early Scandinavian.
Probably (i) < early Scandinavian (compare forms in the Scandinavian languages cited below),
although in Old English (and possibly in later use) perhaps (ii) cognate with Old Frisian kella to name, be called,
Middle Dutch callen to tell (Dutch kallen to speak, to babble, chatter), Middle Low German kallen to speak, to gossip,
Old High German to talk, chatter, jabber, yell, brag, (Middle High German kallen to talk, to talk excessively or
loudly, to summon in a loud voice), Old Icelandic kalla to cry, shout, say, to summon in a loud voice, to name, to
claim, Norwegian kalle , Old Swedish kalla to cry out, to summon by calling, to urge, to say (Swedish kalla ), Old
Danish kallæ , kalle (Danish kalde to cry, to summon in a loud voice, to name) < the same Indo-European base as
(with either a nominal or verbal suffix) Old Church Slavonic voice, musical tone, Russian golos voice, and
perhaps also classical Latin gallus cockerel (see adj.); compare further < the same base (with different
suffixation) Welsh galw (noun) call, shout, and (with reduplication) Old Church Slavonic word, speech (see
adj.).
Question of whether the word is a borrowing from early Scandinavian.
The origin of the Old English word and its continuity with the Middle English examples have both been disputed. The isolated attestation
of Old English ceallian (see quot. OE at sense 1a(a)) apparently shows the breaking expected in West Saxon before geminate ll , which
suggests that it is an inherited word. However, no reflex of such a West Saxon form ceallian (expected to show initial affricate, i.e. *challe )
appears to be attested in Middle English, and it has been argued that the Old English form merely reflects the influence of West Saxon
orthography and that the verb itself is borrowed from early Scandinavian. The source of quot. OE at sense 1a(a) ( Battle of Maldon) is of
relatively late composition date, being an account of events of 991; it contains a small number of undisputed Scandinavian loanwords.
Compare, however, the following isolated attestation of the Old English poetic compound hildecalla battle herald, where the second
element apparently shows an agent noun derived from the same Germanic base, in a form (without breaking) possibly influenced by
Anglian, but probably not due to Scandinavian influence:
OE Exodus 252 Ahleop þa for hæleðum hildecalla, bald beohata, bord up ahof.
This compound is less likely to reflect borrowing of either the verb or a related noun from early Scandinavian, especially as the poem
Exodus is usually assumed to be of early composition date. However, it does not indisputably imply currency of an inherited verb in Old
English.
For the case for inheritance from Germanic see further E. G. Stanley ‘Old English -calla, ceallian’ in D. Pearsall & R. A. Waldron Medieval
Lit. & Civilization (1969) 94–9; for the case for Scandinavian borrowing (now more generally accepted) see R. Dance in Neuphilologische
Brit. //, U.S. //, //
Oxford English Dictionary | The definitive record of the English
language
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1917 O. M Homesteader . iv. 177 ‘Now sit down, my daughter,’ she said judiciously, ‘and
before the young man comes to call on you, tell me all about him.’
1970 J. G Mem. Montparnasse xv. 137 But I now knew where she was living—in an ugly new
building near the Place Magnan. Growing impatient, I called on her.
2011 M. C. B As Pig Turns (2012) 283 Mrs. Ada Benson called on Mrs. Bloxby. The vicar's wife
looked at her wearily. ‘What now?’ she asked.
a1616 W. S Antony & Cleopatra (1623) . iv. 28 Full surfets, and the drinesse of his
bones, Call on him for't.
1621 M. W Countesse of Mountgomeries Urania 504 O Myra, thou art, and wert euer without
compare, wherefore should thy honour bee calld on, but for Honours sake, thy deare breast
being the richest tabernacle for it?
1944 Cedar Rapids (Iowa) Tribune 9 Nov. 3/2 You could (and should) promptly ‘call’ him on it and
ask him to prove it.
1983 W. G Adventures in Screen Trade 18 If he saw a pen, he would put it in his bag. A
watch, a pack of gum, anything. If a crew member called him on it, the star would make a joke,
of course return the object, and the next day the crew member was gone.
1994 St. Louis (Missouri) Post-Dispatch (Nexis) 20 Nov. 2 The children had been served pizza
because of the nature of the adult menu. Grandma thought that they should use forks, and
called them on it at the table.
2006 ‘T. R’ Blood, Sweat & Tea (2009) 5 This was made even more evident when he forgot
what side of his neck the pain was on. When I called him on this he pretended not to know what
I was talking about.
intransitive.
c1405 (c1390) G. C Nun's Priest's Tale (Hengwrt) (2003) l. 183 His felawe gan vp on hym
calle.
1477 W. C tr. R. Le Fèvre Hist. Jason (1913) 93 Whan he had so don he began to calle vpon the
two knightes.
1553 J. B tr. Q. Curtius Rufus Hist. . f. 61 He entered into the kynges logyng, and called
vpon hym diuers tymes by his name, but when he could not awake hym with his voyce he stored
hym with his hand.
1567 G. F tr. M. Bandello Certaine Tragicall Disc. f. 165 Ardizzyno espied the basterde Pierro,
whome he named and called vppon manye tymes, but all in vaine.
1613 A. W Good Newes from Virginia 6 How many idle persons haue we in the streetes of
our Cities, in the High-wayes, and corners of our pathes, which day and night call vpon the
passers by?
† intransitive. To call into question the integrity or validity of; to
challenge, accuse; = to call upon —— 6 at Phrasal verbs 2. Obsolete.
transitive. Originally and chiefly North American. To challenge
or confront (a person) over his or her dishonesty or unacceptable
behaviour. Cf. sense 20c(c).
† To call to (a person) with a request or entreaty; to address in a
loud voice; = to call on —— 1b at Phrasal verbs 2. Also figurative.
Obsolete.
v
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1718 J. C in tr. B. Nieuwentyt Relig. Philosopher I. Ded. p. iij The Texts..in which he
does so often call upon Atheists and Infidels.
1836 Tait's Edinb. Mag. July 452/2 The faint voice called upon me again—‘Lambert—Lambert!’ and
in a moment the recollection of my dear little sister rushed upon my mind!
1875 P. B. M All in All 105 As the living call upon the dead, Stretching their emptied arms
across the bed Where lies what yesterday they called their own, So have I called on thee.
1903 Lancet 31 Dec. 300/1 When called upon loudly by name he opened his eyes.
1483 W. C tr. J. de Voragine Golden Legende f. cclxxxvii/2 There ben many other myracles,
whiche oure blessid lady hath shewed for them that calle vppon her.
1529 T. M Dyaloge Dyuers Maters . f. lxiii/1 He had long called vppon god & our lady and all
the holy company of heuyn and yet felte hym self neuer the better.
1564 tr. M. Flacius Illyricus Godly Admon. Decrees Counsel of Trent 56 It is wicked and idolatrous
to call vpon saintes.
1611 Bible (King James) Gen. iv. 26 Then began men to call vpon the Name of the Lord.
1647 Kingdomes Weekly Post No. 6. sig. F3 The Hangman pulling his cap over his eyes, Captain
Burley called upon God, Lord preserve my soule.
1715 D. D Family Instructor I. . iii. 71 The Glory of a Christian, viz. To worship and call upon
him that made him.
1817 L. B Manfred . i. 35 I call upon ye by the written charm Which gives me power upon you.
1873 C. N Life E. Afr. xxvi. 513 The Arabs and Wasuahili were frantic with despair,..calling upon
Allah and Muhammad.
1904 Lutheran Q. July 304 In his eucharist offerings he also called upon the saints in prayer.
1940 M. B Hawaiian Mythol. ii. 12 Others call upon the spirits of descendants and
ancestors, praying toward the east to Hina-kua..and toward the west to Hina-alo.
2005 16th Cent. Jrnl. 50 At least Razis had called upon God at the moment of his death.
1448 in S. A. Moore Lett. & Papers J. Shillingford (1871) . 62 (MED) My Maister Recorder went to
Westminster..and y with hym, and ther anon the mater was called upon yn comyn place.
1462 M. P in Paston Lett. & Papers (2004) I. 283 She schulde vp to London and calle vppon
her matre there.
1573 J. S tr. L. Guicciardini Garden of Pleasure f. 43 Demosthenes..became hir aduocate and
spokesman and when the matter was called vppon, he aunswered him in this sort: [etc.].
intransitive.
a1450 in F. W. Willmore Hist. Walsall (1887) 168 The Mayer for the tyme beyng, shall truely call
uppon the old Mayer, with alle the Wardens..to make their accompts.
To invoke or make supplication to (a god, saint, or other power);
to pray to; = to call on —— 1a at Phrasal verbs 2.
v
† intransitive. To bring (a legal matter) before a court or other
judicial authority. Obsolete.
Chiefly with infinitive or for. To appeal to (a person, organization,
etc.) to do something; to require, urge, or demand that (a person,
organization, etc.) do something. Also in passive with unexpressed
agent: to be prompted by a duty, responsibility, or urge to do
something. Cf. to call on —— 2a at Phrasal verbs 2.
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c1475 (c1450) Elegy Tomb Cromwell (Harl.) in C. Brown Relig. Lyrics 15th Cent. (1939) 245
Whene thou lest wenest thou shalt be calde vpone.
1530 J. P Lesclarcissement 473/2 Call upon them to remember my mater.
1563 A. G tr. L. Bruni Hist. Warres Imperialles & Gothes . vi. f. 73 The French kyng..being
by Uitigis called vpon for ayde by vertue of the leage that was betwene them, had sent to Uraias
ten thousand Burgonians.
a1616 W. S Measure for Measure (1623) . i. 283 Speake not you to him, till we call vpon
you.
1698 J. F New Acct. E.-India & Persia 3 Where the Trade-winds begin to offer themselves, the
Mariner..is at more leisure to Repose; he not being so often called upon to shift his Course.
1750 S. J Rambler No. 120. 2 He called for help upon the sages of physick.
1797 Reasons against National Despondency 188 I call upon the Country to act and think as if
influenced by one common interest.
1814 Lett. from Eng. II. liii. 368 He called upon his congregation for horses.
1817 J. M Hist. Brit. India II. . iv. 427 They would be called upon by parliament to produce their
records.
1890 Law Rep.: Chancery Div. 314 I am not really called upon to express an opinion with
reference to this prospectus, because the Defendants have said that they do not intend to issue
another prospectus.
1914 E. A Pastor's Wife viii. 83 Now they were called upon to endure the distressing
spectacle of a hitherto reserved relative letting herself go to unbridledness.
1961 P. M Soul clap Hands & Sing (1962) 20 He would be called upon to share a little of
himself.
2002 Outlook (New Delhi) 9 Sept. 10/1 That awful blankness that grips so many of us when
suddenly called upon to split a tab six-ways.
2013 New Yorker 11 Nov. 59/1 F.D.R. called upon the allied powers..to serve as the world's ‘four
policemen’.
1477 E R tr. Dictes or Sayengis Philosophhres (Caxton) (1877) lf. 43 That shalt thou finde
whan thou callest vpon their seruise at thy nede.
1538 R. H. tr. H. Bullinger Comm. 2nd Epist. Paul to Thessalonians ii. f. 24 Thys good kynge called
vpon the commune fydelite that men had promysed him.
1609 W. S Sonnets lxxix. sig. F Whilst I alone did call vpon thy ayde.
1772 J.-N. S Anal. French Orthogr. 68 When an organ is affected with some kind of
impediment, the nearest backward, or retrograde from the lips to the throat, is called upon to
furnish an articulation.
1831 New-Eng. Mag. July 62 Miss Penelope was obliged to call upon her strength of mind for
support under the slanders of an evil world.
1848 G. J. G On Wounds & Injuries Chest ii. 11/1 The other lung is called upon to make up
the work of aërification of the blood.
1922 J. H. H Steel Foundry (ed. 2) viii. 261 As the heads are very much higher than the casting,
they are called upon to feed metal only horizontally.
1963 Connecticut Hist. Soc. Jan. (back cover) He calls upon his long familiarity with Connecticut's
traditions..to reveal how an eighteenth-century house..can bring the past home to us in ways
that enrich the present.
1973 D. J. H & L. T in G. D. Hobson Mod. Petroleum Technol. (ed. 4) xii. 441 The
petroleum chemicals industry can call upon a variety of feedstocks, including natural gas and
straight-run oil fractions.
v
To have recourse to (something); to draw upon; to utilize. Cf. to
call on —— 2c at Phrasal verbs 2.
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2013 Guardian 31 Aug. (Guide Suppl.) 10/1 They called upon the production talents of Steve Albini.
1536 R. T tr. P. Melanchthon Apol. sig. J.vi , in Confessyon Fayth Germaynes Here we call
vpon the iudgementes of all good & wyse men.
1579 G. F tr. F. Guicciardini Hist. Guicciardin . 999 In these actions we may truly call
vpon the testimony of your excellencye.
1644 J. D Kings Cause rationally Debated 28 Witnesse the many examples of Councells
both ancient and moderne too, which might be called upon in attestation of these truths.
1702 Clarendon's Hist. Rebellion I. . 43 His [sc. the Earl of Manchester's] Authority..was still call'd
upon.
1853 H. P. H Hist. Excise Law N.Y. 11 The rumselling system..pleaded time-honored usage; it
called upon the example of the dead to hallow its deeds.
1948 Q. Jrnl. Econ. 404 In insisting upon the inclusion of competitive factors we can call upon
the authority of Marshall.
2005 R. J. DS & D. A. G in B. K. Duffy & R. W. Leeman Amer. Voices 122/1 Dershowitz
made a compelling argument in this legal context by calling upon precedent.
1842 ‘N’ Horse & Hound 308 The set-to is about to begin, or, in other words equally technical,
he is about to ‘call upon his horse’.
1892 F. T. W Race Horse x. 159 He will soon come to understand what is required, and
move off after the ‘schoolmaster’ when called upon.
1932 New Castle (Pa.) News 7 May 4/4 When you call upon a thoroughbred, he gives you all the
speed, heart and sinew in him. When you call upon a Jackass, he kicks.
2011 Sunday Age (Melbourne) (Nexis) 18 Dec. (Sport section) 16 The More Than Ready filly..sat
behind the speed on the rail in the 1000-metre straight race, but once called upon she dashed
clear to win.
1472 M. P in Paston Lett. & Papers (2004) I. 364 I pray ow send me a kopy of þe dyssecharge..
bothe fore my dyscharge and owyr, wat sum euer þat be callyd vpon of eythere of vus
here-aftere.
a1616 W. S Timon of Athens (1623) . ii. 23 My Master is awak'd by great Occasion, To
call vpon his owne.
1642 Remonstr. Passages conc. Ireland 26 His Majesties rents were purposely omitted, and not
called upon in Easter-Term with that earnestnesse as formerly.
1604 W. S Hamlet . iii. 34 I'le call vpon you ere you goe to bed.
1748 S. R Clarissa V. viii. 92 I have just now parted with this honest widow. She called
upon me at my new lodgings.
To appeal to (something) as an authority or precedent; = to call
on —— 2b at Phrasal verbs 2.
v
Horse Racing. Of a rider: to urge (a horse) to exert itself further;
= to call on —— 2d at Phrasal verbs 2. Cf. v. Phrases 14.
† intransitive. To make a claim for (money due); to demand
payment of. Obsolete.
intransitive. To make a short visit to (a person); to pay a call on;
= to call on —— 3 at Phrasal verbs 2.
Annex 23
13/04/2021 call, v. : Oxford English Dictionary
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Copyright © 2021 Oxford University Press. All rights reserved.
1779 J. W in J. H. Jesse G. Selwyn & his Contemp. (1844) IV. 259 Going through Chesterfield
Street, I called upon the old duchess, who is ‘sorely badly’, as they say in Lincolnshire, with her
old complaint.
1840 Fraser's Mag. 404 I can..occupy myself..in calling upon some friends.
1888 A. K. G Behind Closed Doors ii. 9 I was requested to call upon—Mrs. A., let us say, on
business.
1942 Charleston (W. Va.) Gaz. 24 May 25 May I call upon you tomorrow? Since it is Sunday you will
be at home, perhaps?
1954 F. G. P Good Morning, Miss Dove 104 Though it was her custom to pay pastoral calls at
the residences of her pupils, she had never called upon William's grandmother.
1993 T. M Once Angel xxxiii. 378 Penfeld..tilted his disapproving nose in the air and
announced, ‘A Mr. Saleri is here to call upon Miss Scarborough.’
1746 L. C Let. 23 Mar. in Lett. to Son (1787) I. cix. 299 You call upon me for the
partiality of an author to his own works.
1791 J. S Narr. Edystone Lighthouse §73 Supposing his character called upon, not only as a
professional man, but as a man of veracity.
This entry has been updated (OED Third Edition, March 2016; latest version published online March 2021).
† intransitive. To call into question the integrity or validity of; to
challenge, accuse; = to call on —— 4 at Phrasal verbs 2. Obsolete.
Annex 23
Written observations of The Gambia on the preliminary objections raised by Myanmar