Supplement to the Application and to the Second Request for the Indication of Provisional Measures of Protection submitted by the Government of the Republic of Bosnia and Herzegovina

;
1

To The Judges of The International Court of Justice
The Peace Palace
The Hague
The Netherlands 22 August 1993

Your Excellencies:

During the course of the oral proceedings held on 2 April 1993 concern­
ing our first Request for an indication of provisional measures, the former
Acting Agent of the rump Yugoslavia (Serbia and Montenegro), Professor Rosenne
attacked the jurisdiction of the Court under the Genocide Convention to
adjudicate our case and our Request against the Respondent for violâting
the Genocide Convclntion. Needless to say, I was somewhat mystified, confused
and perplexed by Professor Rosenne§ objection to the Jurisdiction of the Court
on the basis of the Genocide Convention. Most regretfully, I also note that
similar objections to the j urisdiction of the Court on· the basis of the

Genocide Convention have also been made by the Respondent§ Agent, Professor
Etinski, in his "Observations" dated 9 August 1993. Therefore in arder
to clarify beyond a doubt that the Court does indeed have jurisdiction to
hear our case, claims, and our second Request dated 27 July 1993 on the basis
of the Genocide Convention, inter alia, I hereby submit to the Court a formal
Memorandum of Law as to why the Court has the jurisdiction to adjudicate
our case, claims and Second Request for provisional measures dated 27 July
1993. Consequently, I hereby supplement and amend our Application of 20
March 1993 and our Request of 27 July 1993 to incorporate this Memorandum by
reference and as integral parts of bath documents. A copy of this 44 page

Memorandum is attached to this letter and is hereby incorporated by reference.

Please accept, Excellencies, the assurance of my highest consideration.

--~-16--~---
Professor Francis A. Boyle
General Agent for the Republic of Bosnia and
Herzegovina before the International Court of
Justice
Hotel Ambassade/Amsterdam
via fax transmission

Attachment fi'217 244 1478 COLLE~~_ LAFW_ { 141004 èV
08/09/93 15:49 ·~-----

1

Memorandumof Law on Jurisdiction under the
Genocide Convention

1. The International Court Of Justice Has Jurisdiction Unger the
Genocide Convention
..
.A. Ar1:.i.cle i!III

'l'he Ge.:1ocide Convention provides for the jurisâiction of the
Internation.:ll court of Justice in Articles VIII and Article IX.
Articl~ V~III states that any contracting Party ••may call upon .
the c•:>nlpetent organs of the United Nations to take such actiém' '
under the Charter of the United Nations as they consictér
appropriate for the prevention and suppression of aots of genocide
or any of the other acts enumet"ated in At"ticle III."
The drHft convention prepj!tr }~y~~~-Ê~9:t::E:!t:_~l a:' tY-G!lneral
request·-of-·1:.tre:Eoonomic·a.n:a· social council (E/447) in Article XII­
providtas that the Hiqh Contractinq Parties may call upon the
"compS:tent organs" of the united Nations to suppress or to prevent
the ·crimes entnnerated in the convention. States committing or
stispected o:: committing genocide are "to qive full effect to the
interventioH of the united Nations." The commentary to the
Secretar'iat 1s draft stress~ that Article XII is intended to
facilit~: t:rteentive action Ey the United Nations 11before the harm
is àone or before it has assumed wide proportions, for then it
takes 011.r thE~nature of a catastrophe, the effects of which are to
a great èxtent irreparable.'' The secretariat did not specify w-hich
Uniteà.Naticns organs should be involved since "this is a question
of the genez-al competence of the United Natiils 0 bein9 applied in a.
partic·ular Gase. 11 The colii.mentary also note.l that "if preventive
action is to have the maximum chance of success, the Members of the
United Nations must not remain passive or indif~erent. The
convention ••• shoulâ, therefore, bind the States to do eyerything in .._·
the ir pc1we;r·:.o support any action by the United Nations intended to
prevent: or stop these crimes." (Id. at 45, 46). Articlè Xli of the
Sec:t;et;n 1s~idaat clearly was intended to supple:ment, :rather than
to preempt, the application of oth~r domestio and in'Fernational
meohan.isms :lf prevention, suppression and redress ·1 'l'he text
pt"ovid•;!!f:: thi:!tthe Article is applicable, "[i)rrespec"t1ive of any
provisic1n in the foregoing articles" (Id. at 45).
This article, with some modification, was incorporated into

the draft p1epared by the Ad Hoc Co:mmittee on Genoci~ (E/794).
ArticlE~ VIII of 11e Ad Hoc committee dra ft states that; a party to
the CoJr'lvention may call upon any competent organ of ·the United
Nation~; to té~ke such action as may be appropriate under he Charter
for the prew:mtion and suppresson of genocide" (E/794 t 12). The
Ad Hoc Committee clearly contemplated that this prov'sion would
permit s·tate P~lrties to submit disputes to the Internat onal Court
of J'usidoe. rhe soviet Union unsuccessfully proposed at States
should be reçuired to report alL cases of genocide and a i breaches COLLEGE OF LAW 141005
08/09/93 15:50 11'217 244 1478

2

of the. obligations imposed by the convention to the securi ty
Council. The Council, pur suant to the Soviet amendment, was
authorized to t(\ke action in accordance with chapt er VI of the
United Nat.ions Charter (See TJnion of soviet socialist Republics,
BASIC P.RINCIPLES OF A CONVENTIONON GENOCIDE, E/AC.25/7, at art.
10, 3). Thi:s provision was rejected on the grounds that it expanded
the au.thor ity of the Security council while restricting the
competence of ;. ot;he~ United Nations organs, particularly the
International èourt (See E/AC. 25/SR.s, at 18-20}. Mr. Azkoul of
Lebanon stat.ed that he could support the Soviet proposal provided
that "[t)he procedure contelnplated for submitting cases of genocide
to the intfin:'national court could therefore be oarried out without
i:mpediment. ' He added ''that if the members of the Co:mmt itee were
assured on that point, thè main objections •.• would be eliminatéq'"
(Id. at 26)' ..The Chair, Mr. Martos; speak.ing as the representative
of th~e unit:ed states, objeeted that the soviat Provision would
permit state:s to f±nd "devious ways to refer ta the Seourity
Counoil cases which should havè been brought before the
interna.tio nourt.l (.E/AC.25/SR.s, at 27. see also, E/AC.25/SR ..
9, at ~). A!làther soviet amendment (to the Chinese draft, which
formed 1the :tasie of Article VIII. See China, DRAF'l' ARTICLES FOR.THE
INCLUSIONI:t<rTHE CONVENTION ON GENOClDEPR.OPOSED BY THE DELEGATION
OF CHINA, :!/AC. 25/9 at art. IV) which provided for obligatory
conununic!;'.tion with the Security Council in cases of genocide and
viol~t.io nfs the convention, also was rejected. Mr. Rudzinski of
Poland obseJ:-ved tha.t ••a diffioulty would arise if the a:mendment
were ac,io.pteèl because violation of the Convention miqht have legal
oonse'ifUepces. whioh were . not quite the same as suppression of
qenocJ.de." ('R/ AC.25/SR.20 at 4).
The Ad Hoc Conunittee provision formed the basis of Article
VIli of th~·sixth Co:mmittee draft which was incorporated into the
Genocide convention. Article VIli of the Sixth committee draft
clarifies that the United Nations organs are oomp.etent to take
appropriate steps ''for the prevention and suppréssion of acts of
genocide as t~el ls the other acts enumerated in article III." The
soviet unio.:'l again submitted a provision for the compulsory
notifit:~at ofiotne Security Council (See remarks of Mr. Morozov of
the_Soviet tnion, 3 U.N. GAOR C.6 at 327-328). Committee Members
again objacted that the soviet proposal was intended ••to prevent
any cases frj)m being referred to an international court." (remarks
of Mr. fMaktos of the United States, id. at 328). During the
discussion o:E'a joint French-Soviet proposa! to obligate states to
submit a.ll c.ases of genocide whioh endangered international peace
to the Secur:i.ty Council, the United States delegate again exprese:ed
the fear tha1; "States might try to avoid submitting their disputes
to the International Court of Justice, where they would be settled
on purely lugal grounds, and :might instead subro.it them to the
Security Council, where they would be settled on political qrounds
with a v:le'ftlto causing ernbarrassment to other parties'' (Id. at 413.
Cf. remarks of Mr. Chaumont of France, id. at 415). Mr.
Kaecken 1eeck of Belgium protested that 1[i)n mentioning only the
seourity cour:cil. •• the ame:ndment: i:rnplied that the s·eourity council08/09/93 15:51 '5'217 244 1478 COLLEGE OF LAW 141006

3

was t~te onl:f organ that could be consul ted in cases of genocide"
(Id.' 413). j>fr. Maktos also was pointed out that such a provision
:risked e:x;tendinq ~the. ju:risdiotion of the Security council int9
disputes wh:.ch were within the purview of the International Court
of Justice 1Id. at 411). Thus, Article VIII clearly a.uthorizes any
Contr;:~.c P aitng to call upon the International court of Justice,
to take appropriate action to prevent and suppress acts of genocide
(For J.egislativp ~istory of Article VIII in the Sixth Committee,
See Id. at J,17 ,' 423, 457) . 1

B. Art.iele J:X

ArticlH IX of the Genocide Convention provides:
,.fi'·
Disputes bêtween the Contractinq Parties relating to
the interpretation, application o:r:: fulfilment of the
presen't: convention, inoluding those relating to the
respon:~:lib ili at ytate for genocide or for any of the
ot,her ects enu:m~ra:t ied Article III, shall be submitted
t.o the International Court of Justice a.t the request of
any of the parties to the dispute. ·

ArticlE: XIV Of the Secretary-General 's draft states that
"[d]isputes relating to the interpretation or application of this
Convention shall be submi tted to the International Court of

Justice" (E/4 47 at 50). The Secretary-General' s report stresses that
the prE~vention and suppression of genocide is an "essential
interes1:•• of the international colnmunity and that it is a, ttma.tte:r
affecting all the parties to the Convention." J'urisd:i,.ction, over
disputes re.lating to the interpretation or application of the
Convention, according to the Secretariat, thus is appropriately
vested in j;.lle International Court of Justice, whose prestige and
decisions are recognized by all Members of the United Nations. The
oo:m:men'tary J,t'oposes that the International Court' s jurisdiction
shoulà. extend to disputes regarding " the interpretation of the
Convention, ' i.e. regardinq the meaning of its provisions," as well ··-··
as to dispu1:es concerninq 11'the app:J.ication' of the convention,
i.e. if it is tc be ascerta.ined whether one of the parties has
faithtully discbarged his obligations." (Id. at 50-51. This
judicial determination of the textual requirements of the Genocide
Conventfion is a complement tc the wide-ranqing provisions in the
Secretaz~y-Gene srdarlf' for the criminal punishment of individual

offenà.e:rs. r.:·niversal as well as intel:'national penal jurisdiction
are provided. see id. at articles VII, VIII, IX,S, X,9 and Annèxes
!,67 anél II 177. Article XIII also obligates a State to compensate
the viot:ilt\s of genocide. Id. at 9) . .
The Sec·r:etary-General' s draft of Article :XIV was incorporated
into tllE! convention formulated by the .Ad Hoc committee. Article X
of the A.d H04J CoiiUUittee Draft, however, precludes the jurisdiction
of the J:nternational Court in those cases in which the dispute is
pendin~; or had :been considered by na competent international
cri:minal tribunal. 11( For discus,sion of Article X, see E/AC.25/SR.

------------.-··--·--··<···----.J...- COLLEGE OF LAW 141007
08/09/93 15:51 '5"217 244 1478 ---- ---·- - -- --- ----··------ ---

"

4

20, .at: 6). Hcwever, unlike the secretary-General's draft, no
detail~ed provision is made for the establishment of such an
international c~indnal court or for universal criminal jurisdiction
(See, E/79~ at Article VII, 11. Eut see, Ad Hoc committee on
Genocide, CASES IN WHICH IN'DIVIDUALS ARE TO BE SUMMONED BEFORE A
CRIMIN..l\L COtJRT UNDER TH:E CONVENTION ON GENOCIDE, E/AC. 25/S (1948}).
The Ad Ho-::. Committee recognized that the crime of genocide
genera:Lly ent;aijt;s the complicity or _direct involvement of

goverm.r~en (See E/AC.25/SR.4, at 3-5) and that national courts
likely will be reluctant or ineffective in adjudicating claims of
State-::iponsored genocide. A provision for some type of
inter:national jurisdiotion thus was required (See re:marks of Mr.o
O:rdonneau of France, E/AC.25/SR. 7, at 8-9; remarks of Mr. Martos of
the United States,, id. at 12-13). The Ad Hoc committee voted 'FÙ
place prima:::-y reliance on the International court to adjudicate the
interpx·etation and application of the Genocide convention (See
E/AC.25/SR. 20, at 6).
'l'he Ad Hoc co:nunittee' s draft was modified by the Sixth
conunitte ~~ its j_:o4th meeting, the commi ttee adopted a joint
United I<ingdom-Belgium amendment (A/C.6/25S), as amended by the
repre~;ent.~ tflvIedia (3 U.N. GAORc.6 1 at 447). This provision
su}J~~q\)en' wtal:r incorporated as Article IX of the Genocide
Cof1vention. Article IX provides that disputes between the
Contrelct.inq Parties "rel ating to the interpretàtion, application or
fulfiln\el"lt of the present convention, including those relating to
th~ r$spons:.bility of a State for genocide or for any of the ether
aots enUmel·ated in Article lii, shall be submitted to the
Inter:na:tionnl Court of Justice at the request of any of the parties
to the~ dispute .11
. ~:r. Fit:.zmaurice noted that reference to the International
court did nc1t preclude the submission of a c&se of genocide which
threatened international peace and security to the Security Council
(id. at 444, 457. See Australian amendment, id. at 454). However,
Mr. Fit.2:ma;urice stressed that Article IX was intended "to impose
upon all Stëtes Parties to the convention the obligation to refer
all disputen relating to cases of genocide to the International
Court" (Id. at 430-431) .
_ Ar1;.icle :rx of the Sixth cornmittee 1s dra ft expanded the
jurisdiàtion of the International court to encompass
n(d]isputes ... relating to the .•• fulfillment of the present
convention, including those re.lating to the responsibility of a
state for gE~nocid ore for any of the acts enumerated in Article
III" (See Joint Belgium and United Kingdom amendment, AfC.6/258).
This additi•:mal language was inserted in order to permit a
determination of state responsibility and liability for genocide.
Mr. Fitzmaurice of the United Kingdom explained that the
modification of Article IX was a response to the fact "that the
convent:ion t~·oul be incomplete if no mention \Vere :made of the
responsibility of States for the acts enumerated in articles II and
[III] •..•• [T]:le representative of the United Kingdom had been
impressed by the fact that all speakers had recogni~ed that the
respon1;dbili·:y of the State was almost al ways invol ved in all acts08/09/93 15:52 "8217 244 1478 COLLEGE OF LAW liZJOOS

5

of .genocide.; the Committee, therefore, could not reject a text
mentioninq the responsibility of the state. and an international
court e:mpow~red~ ttyo them. 11 (Id. at 430. See also id. at 444 •. A
number of :sopeake:rs noted that genocide. 9ene:rally invol ved State
complicity or :responsibility. See, remarks of Mr. Chaumont of
France, id. at 8 i and that, as a result, that some farm of
internation~l jurisdiction was required, see remarks ·of Mr.
K~eckenbeecl 9t]$elgium, id. at 22-23; and the remarks of Mr.
Raafat of ElYpt, id. at 25. The sixth Committee proposed that the
Internation:il Law commission study the question of international
criminal jut"isdiction. see E/760~ at 12). A proposa! to omit the
term "responsibility" on the grounds that it would lead to vaque
accu$ations which would increase tensions between states PartieS'
wa~ rejectt!d (Id. at 690. See A/C.6/305. Various delegates
clàrified that under Article IX that the International Court was
author.ized to determine th~ civil, rather than the criminal
ree;ponsibility of Sta-;.a:s for acts of genocide. See remarks of Mr.
Chaumqnt of France and, Mr. Raafat of l!:qypt id. at 4.31; and Mr. De
B""ëŒs"'"'O%--iffief-]\fetlièl:'lâ.na:$-~-- -...a-:-·-a:t"'···-4:--~;;43" -':"6f:

T,he p:r;ov:i;sii:)n fol:' t-determ.in~t oi-oSntate responsibilty was
consiq~:r to dJ;jep~~ticular lial given the absence of a detailed
pla)'l ;ttir"thü establishment of an international penal t:t-ibunal. Mr.
Mé(.i.ll!i!:of Bolivi not;ed that the joint Belgian and United Kingdom
a~en~E1nt , hich provicled for the determination of State
1f'1l.&!,lPQf'l'Sibil.orfygenocide, "was all the more necessary since the
Qp~~#~•e h;ld refused to accept the principle of an international
fc>;t;;imi)lal] tribunal. 11 (remarks of· Mr Medeiros of Bolivia id. at
439,'). .lt '\l'aS noted that even if established, that · such an
in't:.$-trtationa.l oriminal court would lack compulsory jur-isdiction
(rema,rks of Mr. Chaumont of Fl:"ance, id. at 674. See A/760 at art.
VI, i,o}. Mr. Kaeckenbeeck of Belqium· stressed that there was no
existing- in1:ernational crilninal court o:r draft proposa! for such an
instj_tution, The establishment of such a judioial orqan was so
involved th.!l.t"(i]t was therefore necessary to be realistic, and
make · suit~t le use of the existing organs 11 {id. at 341) • Mr. (~
Kaeckenbeeck recognized that the International court of Justice did
not pos:sess competence in the cr iminal sphere. However 1 "[i] t could
es.tablish tne non-fulfilment, by a state, of its obligation to
punish the acts enumerated in article IV 1 pass judgment on all
disput.es re:~atin to the direct responsibility ot a State for the
commission of such acts, and preseribe :mea.sures to bring about the
cessation oJ the imputed acts and to repair the damage they had
caused" (id. at 339-339. See also rema:rks of Mr. De Beus of
Netherlands, id. at 363-364).
~lr. Pe~;.cato rfe Luxem.bourg observed that, as a consequence of
the joint Belgium anà United Kingdom amendment, that the
Interna·tionéll Court would be requested to determine whether
'*genoc:ide w.:..s committed by a State in the territory of another
State. In that case, the State which had suffered damage would have
a right to ~eparation .he ... [provision] gave the International
Court of Justice the opportunity of deciding whether or not damages
should be g1·anted, and i t would ·be for the plaintiff to prove the '5'217 244 1478 COLLEGE OF LA!__ __ _ 141009
08/09/93 15:53

6

injury sustained" (id. at 438. See also, remarks of Mr. Lachs of
Poland, id. at 442-443 and Mr. Fitzmaurice of the united Kingdom,
id. a·t 444). Mr~. Gross of the United States noted that the phrase
"resp,:~rtsi bfila istat', 11 when used in the traditional sense,
meant "resp:msibility towards another state for damages inflicted,
in vl.olation of the principles cf international law, _ to the
subjeets of the plantiff state (Id. at 704). 2
Smne adqedç clarification of the term . "responsiblity" is
provided b~· à joint amend:me.nt proposed ·by Belgium, . the united
Kingd(Jltil and the united States which did not receive the two-thirds
support required to be considered during the Sixth Conunittee' s

final consideration of the draft convention (Id. at 687. AfC. 6/305.
Belgium and the United Kingdom were co-sponsors of A/C.6/258 whicli
forms the b:asis of Article IX). The amendment eliminated the t~rfn
"resp,msibl~~ and instead provided for jurisdiction by tne
Interr1ationa.l Court over acccusations that a crime of genocide hàd
been cômmit.ted .in· the terri tory of a High Contracting State
(1dis,,u-tes vrould not be th ose whicl'l conç:~±_!!~~--:Ç·b,J y_.otf§.ë!2QJlS:!Jüli
trr-e-"St.a:'tJ:îl.:.t:Uios..li"Tèli-·rèsuTteëi'1:iom an accusation to the affect
that 'the crlm' had bèen committed in the territory of one of the
contra;ctingparties" Id. at 690).
l].lhus, the Convention clearly authorizes the International
Court to determine whether a High contracting l?arty is
"re~~CIJ'l.: fsribcomu" .itting genocide in the territory of another
State. mhe c:ompetence of the Court in such cases to enjoin acts of
ge.nôe.: an.l.to~Eorder damages or reparations was emphasized by Mr.
Fitzm,a-q.:t::-ice of the United Kingdom, co-sponsor of the amendment
wh.i,.ch torms the basis of Article IX. Mr. Fitzmaurice stated that
"no pu.nis.llm p~opterly speaking could be meted out; an arder to
put an end t~o the offensive acts and pay reparations was the only
measure. which could be expected from the International Court of
.Justiceu (Ic .• at 319).
In sum, pursuant to Articles VIII and IX, the International
Court is authorized to clarify the text, determine whether the
Convent:lon is applicable and to adjudge whether a High Contracting
Party'has f~lfilled its treaty obligations. In those instances in
which a Stat:e is alleged to have comrnitted acts of genocide,. the
Court is authorized to a.ffix state responsibility, enjoin the
continuance of acts of genocide and to award damages and or
reparations to the agqrieved State Party. Absent the establishment
of an inter national penal tribunal, the International court Of
JusticJ i~= t~e only judicial organ authorized and competent to make
a legal dete::1nina.tion as to accountabili ty for acts of genocide and
to enjc>in and to provide redress to an aggrieved State and to the
victinu;; of ~;uch crirninal acts. As Mr. Fitz:maurice of the United
Kingdoln observed.

The United Kingdom delegation had always taken into
açc:ount the enormous practical difficulties of bringing
rul.ers •md heads of states to justice, éXpect perphaps at
tlle1 enë. of a war. In time of peace i t was virtually
ünpossi.:>le to exercise any effective international or08/09/93 15:53 "5"217 244 1478 COLLEGE OF LAW ~010

7

national jurisdiction over rulers or heads of States. For
tbat 1·eason, the United .Kingdom delegation had felt that
p:t:oviuion to refer aots of genocide to the International
court of Justice, and the inclus ion of the idea of
i:nterHational responsibili ty of .st.ates or Govern:ments 1
was necessary for the establishment of an effective
conveution on genocide {Id. at 444). ·

II. Th•~ Gertodidef convention Should Be Broadly Interpreted

A treèllty, in accordance with the Vienna Convention On The La'lr.r
Of Tr.actties, is to be inte.rpreted in "good faith in accordance with
thE! ord.inaly meaninq of the terms of the treaty in their context.

and in the light of its [the treaty'sJ object and purpose" (q N.~ '
Doc. l'\fCOKF.39/27/ at 289 {1969), 1155 lLN.T.S. 331, art.
31). Reoou~se also may be had to supplementary means of
interpretation, ineluding tpe preparatory 'lr.rork ofthe treaty and
the eircumetances surronding the draftin.g of the in~t~u:m,~ nId..
--at---~~rt·;-·-:r~r-;--T toïject- ;ànù-npurpnse t: a rütùei Genocide
Convention and the international co'lnlll.unity'desire to insure the
prQt~ction of all qroups within the hUlllanfamily à.ictates that the
C()nv~nt:i should be a.ccorded a .broad interpretation. Mr. Gross of
the Qn.i,ted·states observed in thé sixth committèe that the Genèral
Asse.~b ha)i. yeclared that the suppression of genocide is "a matter
of.in1~e.r toaal concern, because the extermination of human groups
·é.ncila.q cg:vilzation itself" (3 UN GAOR c.6 at 91). Mr. Azkoul
of Llé:Panon noted that "for the first time in an international or
con.S:':t:it:\ltionadocument, mention was made ..• of the protection of
t:tt .~lJinan group ..• and not only of the individual ... [t]he inherent
value o,f th•e. human qroup bad at last been recognized as well as i ts
contri:t1ution to the cultural heritage of the human raoe" (Id. at
33} • J:n its 1951 advisory opinion in Reservations 'I'o 1'he Conveiltion
OilThe Prevuntion Of The Crime Of Genocide, the International Cou:rt
recog'ni.zed the Convention's humanitarian and civilizing purpose:

'lt'h.ot·iqins of the Convention show that it was the
1n.tent ion of thCillUnited Nations to condemn and punish
çrenoci1:le as "a cri:me under international law 11 involving
a cfenial of the right of existence of entire human
çrroups, a danial which shocks the conscience of mankind
and results in great losses to humanity, and which is
6ontra:::-y to mo:ral law and to the spirit and aims of the
tJnited Nations (Resolution 96 {I) of the General Assembly,
Decemb:~ 1.rth, 1946) .••. [T]he principles underlying the
Conven,;.ion are principles which are .recognized by
c:ivili•~e dations as binding on States, evén with out any
c'onveni:ional obligation. A second consequence is the
'l.miver~ charlcter both of the condemnation of genocide
;:md of the co-operation required 1in order to liberate
mankind from such an odious soourge 11 (Prea:mble to the
co:nven1~i .on.. · "6"217 244 1478 COL~GE OF LA_!__ 141011
08/09/93 15:54

s

~l'h (Genocide] Convention wa.s manifestly adopted fo:r a
purely humanitarian and civilizing purpose. It is indeed
difficult ~o imagine a convention that might have this
<iual cbaracter to a greater degree, since its object on
1:he oue hand is to sateguard the very existence of
cJertai t1 human groups and on the other to confirm ?tnd
endorsa the most elementary principles of morality. In

such a c~n~ntion the oontracting St~tes do not have any
intere;t o~~ their ovm; they merely have, one and all, a
co·mmon interest, namely , the accomplishment of those
high ~~urpose wshich are the raison d' ff!'t.re of the
oonven·:ion. Consequently, in a convention of this type
one ''annot speq:k of indi vidual advantaqes or
disadv••ntages to states, or of the maintenance of a ....
perfeo·:. oontractu~l balance between riqhts and duties.
The hit;rh ideals which inspired the Convention proviàe, by
virtue of the common will of the parties, the foundation
ëLnd measure of all its provisions (Id. i,!lt_~;)J.~."
·~"-"""'-~•.__.__>r......_...~...-.-.=--·,,.,~-~~~"_•-·..••• • '• ••
In thsir jojnt dissentinq opinion, Justices Guerrero, McNair, R.ead

and Mo,noted, in part, that "the enormity of the crime of genocide
cali. hai.·dly be exagqera.ted, and any treaty for its repression
dtrtse;r-ves tl:.e most generous interpretationtt (Id. at 36). 'l'he
I,tlterrla.tionctl Court in the instant case is charged with a special
respÇmsibil:.ty to uphold the civilizinq purpose of international
·l~ .. t:•rosecutor Telford Taylor in the EinsatzgJ:Uppen case, which
in,v:ol,Ved th'~ prosecution of the Nazi offioers in charge of the
genooid•: k~illrig squads, reminded an Alnerican war crimes tribunal
of the threë:t posed by genocide to the international communi ty

The defendants a~e not charged ... with the crime of
disaqre:eing with us on questions of international law •.•
what they did 'frli\not only a crime against humanity under

ini:ern<=.tional penal law; it was a heinous crime under all
ci vili2 ecl legal systems .... The crime invol ved in this
ca~;e is murder--deliberate, premedi tated murder; murder
on a q:.gantic soale; murder ooimnitted for the \Vorst of
all pc•ssible motives .... No system of domestic or
inte;national penal law could possibly survive unde.r
which the determination of guilt for murder is governed
by the ••. religious creed or :racial origin of the victim.
Ir is v.itally important to the peace of the world that no
such doctrine gain currency·among nations. we ea:rnestly
auggest to the court that true judical wisdom ... counsels

firmness rather than leniency to those adjuàged quility
of this terrible crime against humanity. ·(United States
o:E All\e:rica v. otto Ohlendorf, et. al. (Case No. 9), IV
TRIALS OF WAR CR!MINALS BEFORE THE NUERNBERG MILITARY
TRIBUNALS UNDER CONTROL COUNCIL LAW No. 10 3B3 (1950).

The~ !n·eernational Court also shoulà be. mindful of the
circumst.ances surronding the drafting and passage of the Genocide 14112
08/09/93 15:55 '5"217 244 1478 C·-LEG--·EFL·--- -.

9

Conve.ntion. The Convention was drafted and unanimously adopted in
response tc, the atrooities committed by Nazi Germany and the other
Axis Powers d~ing World War II and constitutes an effort ·to
prevent anc. punish the repetition of such barbarities. Mr. Maktos
of the Unii~ed states, Chair of the Ad: Hoc Committee on Genocide,
o.bserved tl:.at the catalyst which had provoked the United Nations'
effort to c ::~mb genocide "had been the systematic massacre of Jews
by t11e. na:d .~qthorities durinq the caurse of the last wa:r"
(E/AC.25/Slè.5'at 3}. Mr. Ordonneau of France noted that the "stress
on the prohlem of genocide unquestionably arose out of the last
war .••• [I)t was the excessses committed by the Nazis and Fasciste
which h.ad auakened the world's conscience" (E/AC.2S/SR. 7 at 7). Mr•.
Morozov of 1:.he Union of $oviet Socialist Republics, ·duri~g the 194S5
àebate on the Genocide Convention, rendnded the General Assem.bly·.,9·f·
the costs and indignation aroused by the Nazi' s po licy of genocide:

[O)ne :>f the worst oril\'leS conun;Ltted durin9' the late war
had been th~,..2.:t"9Ëol ....e.é.ructi_n"'..of R~acia·l and
"'nafïôn:s.rgroup$, directed toward the complete elimination
6f certain ras-es wh.ich had sprung up in the course of
bistor:r. More than 12 million people had fallen victim.s
to that abominable crime, not oounting- the victims of
.Japane:;e imperialism. It had aroused the indignation of
all th•il civilized peoples of the world, and the united
Natiom; haà. set itself the task of preventing i t, and of
ensuring that in future anyone guilty of such a crime
should be punished (Offioials Records of The Third
Session Of 'l'he General Assern.bly, Part r, summary Records
Of Meetings 21 september-12 December 1948, l7Sth Ple.nary
Me1etin~ a., 811) •

EffortEi were mada to include specifie reference to the Nazi
and. fasc~is acts of qenocide in the prearnble ta the convention (See
E/794 2Lt 2, Preamble adopted at E/AC.25/SR.23 at 4, 5; and
A/C. 6/215/Re:v. 1; A/C.6/27J). Mr. Morozov of the Union of soviet·
Socialist Republics, durinq the Sixth Conunittee debates, noted that
·his co1mtry 1attaohed great importance to a convention on genocide,
whioh it felt was indissolu.bly linked with fasèism, nazism and
other tBys~em propagating theories of racial hatred 11 (3 UNGAOR c. 6
at :1..3). Howev-er, the majority of the Member States ooncluded that
suoh a. re fe renee would de tract from the Convention 1s pr imary
purpos7 whic::h was to prevent and punish the repetition of su.ch
state-s~,onso geneocide, whether com:mitted in time of war or peace
(See remarks of Mr. Gross of the United States, Official Records Of
The Thü:·d Session Of the General Assembly, supra at 820. See also
remarks of Nr. Dignam of Australia, id. at 822). Mr. Azkoul of
t.ebanoJ'l, du1·ing the Sixth Committee debates, &greed that some
referei'lce 11should be made to the events of recent history which had
moved the United Nations to draft a convention on genocide.
Howeve1:- 1e ·:.hought the wording .•• miqht be danqerous as i t seemed
to exqlude fi"om the convention genocide conunitted. for reasons other
than dc~c·tri nfusracial. superiority•• (3 UN GAORc. 6 at 501. The Ad08/09/93 15:55 U'217 244 1478 COLLEGE OF LAW 141013

10

Hoc Committee rejected a Soviet amendment which linked genocide to
11Fascis1n-Na2:ism." See E/AC. 25/ SR. 22, at 3, 7. A related Lebanese
proposal ale.o wa• rejected. E/AC.25/SR.22, at 5,6). Mindful of the
need to recognize the historie events which provoked the dra.ftinq
of the Genocide Convention, the Sixth Committee did determine that
the preambl s should recoqnize that "at all periods of his tory
genocide ha~ inflicted qrèat lasses on humanity 11and that "ih order
to liberate ma~lf:l from such an odious scourge, internatonal co­
operation is :i:'equired" (See 3 U.N. GAOR C.6 at 498-509. See
A/C.6/26l).
Th4! Inte-rnational' s Court interpretation of the Genocide
Convention cLlso should be guided by the upreparatory work of the
treaty" (Vi1mna convention On 'l'he Law Of 'l'reaties supra at art. ·
32). During the Sixth cornmittee's consideratïon of the Ad Hoc" ·
Comm.i tt~a 1e dra ft convention, Mr. Kerno, Assistant Secre.tary.- .··
General. in charge of the Legal Department, noted that "if
differences of opinion arose in respE!ot of any provision, the
Internationé.l Court o'f Justice would be the competent organ to give
an· int·e7:prst·attp·n ·c.rftP,~ e:~n-f3·-u~~ G:~AORC~-Ei 7·-8~ft He went on
t() e:x;pl4in tnat the ..CC)ur,t'·s ~nalysi of the convention, to the
extent poss:~ble s,oUld be based upon the ta;xt. Mr. Kerno added
th~t tJ:le in1:.èrpretation of ·vague or ·ambiguous articles. should be

inform.ed. by a review of the smnmary records of the meetings at
whidh t.,he :;>revisions were drafted and incorporated into the
Convention.
[I]t was the text of an amendment, regardless of any

interp1·etation, which was put .to the vote; the
cieclara.tions of the various representatives appeared in
the Sllnim.ary records of the meetings, and miqht be used by
the 11npetent organs which would have to take cognizance
of 'èisputes between the High Contracting Parties
relatir,g to the interpretation or application of this
Convent.ion" as stated in article [IX] of the draft
convent.ion (Id. at 134).

Mr. Kerno later again reiterated that "if the text were
unambi~lous t,e (International] Court would base its opinion on an
interpr•!!t~ tfiothe text according to the accepted principles of
internat.iona.l law. 11.However, " [i )f the text were ambiguous 1 the
Coqrt would no doubt consult the records of the discussion which
had \taken place on the text concerned" (Id. at 718). The
11ambiguity" of the relevant provisions of the Genocide Convention
necessi~:.at teae. the court consider the clarifying statements ·
which w~ere Dlade during the drafting of the treaty text.

III. THJ~ DEE'INITION OF GENOCIDE UNDER ARTICLE II

A. The Jne:ments Of Genocide

ArticlE II defines genocide:08/09/93 15:56 '8'217 244 1478 COLLEGE OF LAW 141014

11

In the present Convention, genocide means any of the
follow~. ncs coltllt\itted with intent to destroy, in whole
or in part, ~ national, ethnical, racial or reliqious
g:roups, a su ch:
(H) Killing members of the group;
(b: Causing serious bodily or mental harrn to members
Clf the group; ·
cc: D-l~erately inflictinq on the group conditions
of life 'câlculated to brinq about its physical
destruction in whole or in part;
(d: Imposinq rneasures intended to prevent births
- "ri thin the group;
(e:~ Foroibly transferring chil'dren of the group to
anothe::- group. •· .

B. ThEt Moti·re Requirement Is Broadly Defined

The Ser::retariat's draft in Article I(II) defines genocide as
"a eriminal act di'rèctéï!t----aqainst a raeial;- national, linguistic,
religious o::- political group with the purpose of destroying it in
whole or in part, or of prev$ntinq its preservation or
develqpment." The conu\'l~mt notey that 11[t]his means that (an
aot's] obje,::t must be the destruction of a qroup of human beings"
(E/447;. at 23). Physical genocide, according to the conunentary,
"invol V'es ar:~ tntended to 1 cause the dea th of members of a group,
or injuring their he~lth or physical integrity'"· (Id. at 25).
~['h Aed Hoc connnittee introduced a motive requirement by
specif:y:ing that genocide must be "committed with the inte.nt to
destrt>y a national, racial, religious or political group, on
qrounà.s: of the national or racial origin, religious belief, or
politic1al c•pinion of its members" (E/794 at 5, art. II). Mr.
Morozov of the Soviet Union stressed that "the definition of
genocide should include two specifie elements: the groups to be
protect~e 1.ndthe motives behind the criminal act" (E/AC.25/SR.11
at 2). The United states proposed that Article Il should specify
that genooiie entails "the intentional destruction, in whole or in­
part, c•f ra ::ial·, national or religious groups as such. 11 Mr.. Martos
expressed t.he fear that the inclusion of specifie motives might
result. in\ an individual claiming 1that a crime was colnnlitte.d for
motives oth,3r than those specified. Political groups, for instance,
might- be eliminated on ec;:onomic grounds 11 (E/AC.25/SR.ll, at 1-2.
See <t:Lso re1narks of Mr. Perez-Perozo of venezuela, E/AC.25/SR.l2 at
7). China also unsuccessfully souqht to broaden the motive
requirement {Id. at 2,7. See E/'A.C.25/9). However, the Ad Hoc
Coltllni·t1:ee ,,oted to define genocide 11absolutely clearly so that
judges could know exactly what was meant by the. term." (remarks of
Mr. MoJ::-ozoY, E/AC.25/SR.12, at 7). The Committee voted, with one
absen·tion, to specify that genocide against a national, racial,
religious or political group must be based 1on grounds of national
or :r-a•cial origin, reliqious belief or political opinion"
(E/AC;.25/SF. 13 at 4. See also E/AC.25/SR.l2, at 12). The provision
in the SeCl~etari 1satdraft that ·genocide includes acts which are08/09/93 15:57 U217 244 1478 COLLEGE OF LAW 141015

12

direct.:;•dat the prevention of ·the normal development of a group"
was abandoned as "too wide and ••• to vague" (remarks of Mr. Morozov
of th•e soviet Union, E/AC. 25/SR.12, at 3).
~rhe s:.xth tommi ttee adopted a Venezuelan amendment which
incorporated the American proposal for a broadly defined motive
requirEunent. Venezuela obj ected to the enumera ti on or motives and
propo1;;ed to substitute the phrase 1as such 11(See 3 UN GAO~. c.6 at

111 and thn Veme~uelan amendment, A/ C. 612 31. see remarks of Mr.
Pe rez Perozo df :tJenezuela id. at 119, 124-.125). Mr. Fizmaurice of
the ui:llted :Kinqdom argued that the enumeration of motives "was not
merely useless;. it was danqerous, for its limitative nature would
enabl1e those who committed that crime 'one qrounds of' one of the
motives listed in the article" (Id. at 118). Mr. Pe'rez Perozo of.
Venezuela, also stre~Sse dt·at an enumeration of motives was,. .
uselese; and even dangerous, as such a restrictive enumeration woul;ç:J '
be a p()werful weapori in t.he hands of the guilty parties and woul'q
help them 1:.o avoid .}:;)eincharged with genocide. Their defenders
would lnaintain that the crimes had been committed for other reasons
~ha-n----t:-hese-#st;eà -~±~.: .-l--l24e.-G-f. rema--cks of M:r.
BartO$ of ·t:he 11f.orme Y ucjoslavia," id. 120; Mr. Paredes of the
PhilipppinESt id. at 121).
Tbe killing of members of a racial, ethnie, national or
reliqious çroup (because they are metnbers of that group) thus may
reflec::t a r:1nge of motives 1 including the desire to expel the group
from territ.ory or from a State. Such acts thus need not be solely
motivated hy animus or hatred,. As noted by Mr. Pe'rez Perozo in
explaining the interpretation to be accorded to the phrase "as
such":

The pu.rpose ••• was to specify that, for genocide to be
commit.ted, a group--for instance, a racial group-.,..must be
destrc1yed qua group. The Venezuelan amendment omitteà the
enume1·ation appearinq in article II of the Ad Hoc
Conun.it;tee's draft, but re-introduced the motives for the
crime without, however, doing so in a: limitative form
which admitted of no motives other than those which.were
listed. The aim of the amendment was to give wider powers
o:f dif;cretion to the j\ldqes who would be called upon to
deal 1Y h cases of genocide. The General Assewbly had
m;a.nifE!Sted i ts intention to suppress genocide as full y as
pi::lSSil 'lhe a.option of the Venezuelan atnendment would
'.enablE! the judges to take into account ether motives than
those listed in the Ad Hoc committee's draft {Id. at 131.

The eKpansive interpretation which is to be, given to the
phras:e "as such_'' was noted by Mr. Demesmin of· H~t1 fll"wing his
vote for t:1e Venezuelan amendment. Mr .• Demes:min Jstated that Hati
had vo·ted ln favor of the Venezuelan amendment 1because the author
of that am1md1nent had declared that his object was to provide for
all lil.p·t iistad~l of giving restrictive enumeration,. as proposed
by tlie Ad Hoc committee .... [.IJt was impossible to vote for anc 08/09/93 15:57 '5"217 244 1478 COLLEGE OF LAW ~016

13

amendme:nt ,.,hich would be intèrpreted as tending to delete the
statemE:!nt c,f motives."(Id. at 133) The Hatian deleqate noted that
11[l'l]Oc:me could qefine the meanütg of the Venezuelan proposal more
clearly than the V'ene21uelan representative who... bad clearly stated
that his aJnendment embodied all possib.le motives" (Id. at 137).
Thus, 1PThile:a statement of motives was aonsidered to be necessary
in ordel:" ta distinguish genocide from homicide, the ·motive
:t"equirBtnent. is ;toy:pe given an expansive interpretation. In order to
constitute an act'of genocide, the ektermination of a group need
not be anintated exclusively by hatred or racism. Such atrocities,
for ex;::~.m 1 m ay1Ereflect. a desire to achieve expansive political
goals (See remarks of Mr. Ordonneau of France on the expansive
interpreta·t:.ion of the motive requirement. A broad interpretation .
may include persecution fol:" reasons of national security or,
econom:i.é ne1cessity E/AC. 251 SR .12, at 5) • .·
D1lrinc;· the World War II war crimes trials, German de.fendants
frequently c:laimed thàt they had exterminated Jews and othE!!r groups
because they believed that these groups were bearers of
1Bo.l:sh,e.vi Thsem~~ a~qued that the·ir acts were motivated by ·a
desire to politically defend the German Nation against this "red
menace 11 ra·:.her than by racial animus. The incorporation of the
broad motive requirernent of the Venezuelan arnendment into the
Genocide Convention 'prevents defendants from pleading that theil:"
acts 1::onstitute politically motivated homicide rather than genocide
(See United States v. Otto Ohlendo:t:"f et. al. IV TRIALS OF WAR

CO'UNCIJL LAl'f No.RE 10 TH411,NU476BER(1950)).RY TRIBUNAL UNDER CONTROl.
11
The Sjxth conunittee voted ta exclude "cultural genocide from
the Convention {See 3 UN GAOR c.6 at 206. But see E/794 at
a:rt.I(II) P,), 5-6; E/794 at art III, 6:-7). Nevertheless, the
commit·tee n.embers recoqnized that the pro1ibition against genocide
was i:n.tend~d to protect both a group s physical existence and
culture. The destruction of a culture fractured a group's unity,
limited thu diversity of the hmnan fa:mily and exposed a group to
anti-SI:)Cial influences (See rema.rks of Mr. Pe're.z Perozo of
Vene.zu1S!la, 3 U.N. GAORC.6 at 195-197). General Assembly Resolution
96(!) of 0Hoember 11, 1946, which constituted the foundation for
the 19118 Genocide Convention, proclaimed that genocide "results in
qreat. losses to humanity in the form of cultural and ether
contributions rep:t"esented by these groups. 11 In fact, the
destr·uctiotl c..pfculture was one of the chief characteristics of the
Nazi 're ~renocid policies (See remarks of Mr. Zourek of
Czeho,sloval:ia, 3 UN GAOR at 205).
Mr Sardar Bahadur Khan of Pakistan noted in the sixth
Coro:mti·t:ee 1:hat:

cultural genocide could not be divorced from
plhysi<~ anl biological genocide, since the two crimes
w.,ere c:omplementary in so far as they had the same. motive
a:nd the same abject, namely, the destruction of a
l!l;ational, racial or religions group as such, ei ther by
exter:ninating its rnernbe rr~ by destroying its specialt";08/09/93 15: 58 '5"217 244 1478 COLLEGE OF LAW 14117

14

charac!teristics •... [C]ultural genocide represented the
end, 0\hereas physical genocide was merely the means. The
chief motiv~ of genocide was a blind rage to destroy the
ideas, the values and the very soul of a national, racial
olt:"religious group, rather than i ts physical existence.
Thus the end and the means were closely linked together;
cultu1·al genocide and physical genocide were. indivisible.
It. wou ld bf? âp'ainst all rea son to treat physical genocide
à!~ a crimé an·d not to do the same for ·cultural genocide
(ld. <;,t193) •

Nevertheles~s ,t was determined that the prohibition against
cultural genocide was best included wi thin human rights instruments
(See remar:ts of Mr. Fizmaurice of the United Kingdom, Officiql,
Record!;; Of The Third Session Of The General Assembly, ~art I, 1948',·
l79th. l?lenary Meeting, at 837. But see re.marks of Mr. Ikramullah of
Pakist•;\n, J.d. at 818·, 819). However, given the close relationship
betweeJrt phrsical and cultural genocide, it is clear that the
destruction of religious monuments, edifices and historie abjects
by the. client forces of 1Yugoslavia (Serbia-Montenegro) 11 is
strongly pl~obativ ofe a motive to destroy a group "as such" (See
generally i:.he remarks of Mr. Pe 'rez Perozo of Venezuela, id. at
816-818} • '

B. The Entire Group Need Not Be Destroyed

The definition of genocide under the Genocide Convention
requir~a ar, intention to des troy a group (See remarks of Mr. Gross
of the Unit;ed states, 3 U.N. GAOR C. 6, at 91) • However, it is not
requirad that the entire group is destroyed.
· This uas clearly agreed upon by the Ad Hoc Comm:rnittee. The
Chinese dr:lft convention, which forms the basis of the Ad Hoc
Committee tiraft, specifies that genocide involves acts directed
again.s·t a group for the purpose of "(D) estroying totally or
partially t.he physical existence of such group" (E/AC. 25/9 at art.
I{l)). Article I(1) of the Chinese draft was subsequently modified
and i.n·corporated into the Ad Hoc Colninittee's draft Article II(l)
which., in 1ts amended form, prohibits the ••(k) illing of members of
the grc::mp" (E/AC. 2/SR.l3 at 8). The sponsor of this provision, Mr.
Marto's of the United States, explained in reply to a question posed
by Mr. RuàJ:i<!fSki of Poland, that nthe intention was the important
faoto~: anrd.:that the destruction of a fraction of the group would
constitute genocide provided that the intention was to destroy the
group ·tota:_ly 11 (E/AC. 25/SR.13, at 6).
A.:t"tic:.e II ( 1) of the Ad Hoc Committee dra ft was retained in
the Si:~t Ch:ommi ttee dra ft and appears in the Convention as Article
II(a). The phrase, "in whole or in part," ("totally or partially 11
in the Chinese draft) was transferred to the introductory paragraph
of Article II (See Norwegian Amendment A/C.6/228, 3 UN GAOR C.6 at
- 92, 97, w:lich modified Article II to read, nin the present
Conve:n·tion, genocide means any of the following aots committed with
inte:n.t to destroy, in whole or in pa:r-t, a national, ethnical, COLLEGE OF LAW 141018
• 08/09/93 15:59 "5'217 244 1478 ·------

15

racia 1 or rel igious groups, as such") . M:r. Wikborg of Norway
e::x:plained that his delegation, 11simply wanted to point out ... that
it wa:g not necess~ry to kill all the members of a group in order to
co:mmi·t geno::dde" (Id. at 93). Mr. Chaumont of France went so far as
ta propose that tt(i) f a motive for the crime existéd, genocide
exist1a.d even if only a single individual were the victim" (;Id. at
90-91. See Prench .A:mendment, A/C. 6/224 v.rhich provided that genocide

entailE!d "an at.taçk on life directed against a hurnan group, or
aainst: an individual as a :member of a human group ... ''). MT.
Chaumortt later withdrew his amendroent in favor of the Norwegian
proposal p:d, at 93) which, in his view, "expressed the same
furtdatnetntal idea" (Id. at 95).

C. Genocide Does Not Require Premeditation

The definition of Gencocide contained within Article II d.oes
not re~quir pQre:m.editation. Article II of the Ad Hoc Conunittee draft
states•thàt· "genociae means any of the following deliberate acts
commit:ted w:Lth the intent to destroy a national, racial, religious
or po:Lftical group, on grounds of the national or racial origin,

religoi.ous balief, or ,Political opinion of its members" (E/794 at
article I!, 5.
Thé . SJ.xth commi ttee voted twenty-seven to ten wi th six
abstentions ta e.xclude the ph:rase 1deliberate" from its draft. The
basis f~: this' deletion was that deliberation or premeditation does
not c~::>r.~st ait m~tneal element of the crime of genocide (See
remarl<:s of Ur. Dihgo of Cuba, 3 UN GAOR c. 6 at 89 and Mr. Paredes
of Philippines, id. at 90, explaining that the term "delibera tet'
connoted p::emedi tati on. See id. at 90, deleting the wo:rd
''delibe.rate 11from the text. See the co:nunentary to the Report Of The
Ad Hoc Committee On Genocide, E/794, at 5). 'l'hus, genocide does not
regui.t·e "a persistent thought devoted to the attainrnent of a goal
which ·o~ne had set for oneself 11 (Remarks of Ml:'. Paredes of the

Philippinésj 3 UN GAOR at 90). Premeditaition, however, might be
consid.e:~: ased an aggravating circumstance in setting the
appropria te punishment (See remarks of Mr. Pe' :rez; Perozo of
Venezuela, j_d. at 87; and ramarks of Mr. Demesmin of Hati, id. at
86-87} •

D. Geno,~id Ree.quires A Specifie Intent To Destroy A Human Group
\.
ThE~ Si)jth Committee accepted the language of Article II of Ad
Hoc ConunittEte draft "Which specifies that genocide " means any of
the following •.• acts conunitted ~ith the intent ta destroy .... "
{E/794. at ~. See the conunentary to the Report Of The Ad Hoc

ConunittE:le Or Genocide, id. For the adoption of Article II by the
Sixth ccmunittee, see 3 U.N. GAOR C.6 at 192. See AfC.6/245). During
·the Si:~e to:mni ttee' s consideration of this provision, the Union of
Soviet Socialist Republics proposed to substitute the words "aimed
at the :physical destruction'' (See E/C. 6/223. See also 3 UN GAORat
97). Mr'.. Mo1·ozov explained that. this ·tvould "eliminate everything '5"217 244 1478 COLLEGE OF LAW ---------·141019
~ 08/09/93 15:59

16

relating to the concept of responsibility 11and impose liability for
acts 11'resulting in destruction.'" Otherwise, 1(t]he perpetrators
of acb; of genoc~de would in certain cases be able to claim that
they WE~re not in fact guilty of genocide, having had no intent to
destroy a ;;riven group, either tvholly or partially; they might
likewie:e assert that they had simply carried out superior orders
and tha1t they had been unable to do otherwise 11 (3 UN GAORat 96).
Mr. Grc)SS cf th~ ~nited States objected that the "USSR amendment
introduced a furldatriental modification to the· defintion of genocide.
It was, ind1::led, the intent to des troy a group which differentiated
the c:d.me cf genocide from the crime of simple homicide" (Id. at
96. See alHo remarks of Mr. Kaeckenbe.eck of Belgium, id.). Mr.
Bartofs of the 11former Yugoslavia 11 11thought that the main
charac:t.e:ristic ·of genocide lay in the intent to attack a group. '
That particular charecteristic should be brought out, as in it lay·
the difference between an ordinary crime and genocide" (Id. at 93).

'l'he. Sc·viet arnendment was rejected by thirty-six votes to

eleven witt.. four abstentions (Id. at 97). Mr. Amado of Bra.zi
stres::E;ed tl1~ i~portance of retaining the notion of specifie intent
in the. defil'l.ition of genocide:

C-tenocüie was characterized by the factor of particular
int.ent to destroy a group. In the absence of that factor,
whatev•~r the degree of atroci ty of an act and however
s:i:m.il ial~ might be to the acts described in the
Clonveni:ion, that act could still not be calle.d
gr$nocide ••.• [I]t was important to retain the concept of
d'o.lus :1pecialis . ...(!d. at S7) .

' ~'"/''

E. The Genocide Convention Protects National, Ethnical, Racial And
Religious G1·oups

General Assernbly Resolution 96(I) of 1946 affirms that
genocidE:! is a crime under international law whether ''committed on
religious, racial, political or any other groups." Resolution 96{I)
served as the basis for the Secretary~Genera 1sl slightly more
expansive dratt which encompassed uracial, national, linguistic,
religious or political groups of human beings•• (E/447 at art. l (I),
20). The com:nentar'y notes that all these groups, with the exception
of lin,~listi oroups, were proteoted under General Assembly 96(I)
and that th.; Secretary-General' s dra ft was designed to off er the
, "wides·t possible formula" (Id. at 22).
ThE~ Ad Hoc committee · limited Article. li's protection to
nation•::..l, ra:ial, religious and political groups (E/794 at art. II,
5). While Mmnber States were unanilnous in their support for the 08/09/93 16:00 '5'217 244 1478 COLLEGE OF LAW Il020

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17

inclusion cf national, racial and religious qroups, political

groups ,~ere included by a vote of four-to-three (Commentary, id. at
5. see E/AC.25/SRllJ at 4; E/AC.25/SR.3 at 10-12). Mr. Azkoul of
Lebanon stre:ssed the "essential difference between racial, national
and rEiliqiOllS groups, all of which bore an inalienable charaoter,
on [the) one hand and political groups, far less stable in
oharacter, on the other" (E/AC.25/SR.4 at lO). lie later reitérated
that a poli·:.ical!- gl;oup "was not permanent; it was based on a body
of theoreti~al concepts whereas sentiment or tradition bound the
members of i!1national, racial or religious group 11(E/AC.25/SR.l3 at
2). Mr. Rud.!:inski of Poland also noted that political groups were
transi tory <:tnd often disappeared with the demise of their leaders
(E/AC.25/SR.4 at 10). . t'._.r·.f
The si:cth Coltllnittee voted ta exclude political groups from the.
protection :t.fthe Genocide Convention (3 UN GAOR ·at 663-664. See··
also :Ld. at +15. The ,United States witharew a proposai t_o include. ·
econoini·c gro.~p with.in the protection of Article II, id. at ll4-
115. S•e u:nit~ Sqtat~s amendment, A/C~-~/2~ 1 4)r. Amado of Brazil
stated that ''q$.boc:i<.'lm'l,lsbe defined striato sensu as a specifie
crime_ a:qa±r.:.$t··cEh::t~ c;p:-oups for racial; national or religious
réasons i (Id- a.t 56) •. He emphasiz-ed that the crime of genocide
co~Td only be perpetrated àgainst groups which were "stable and
permal1eri.t1t (id. àt 57). Mr. Lachs of Poland also pointed out that
racial, national or religious groups were distinguished by their
"homo,~eneit (Iy." at 111).
1~·· Ahdoh of Iran further clarified the rationale behind
aocoX'd4.ng protection to racial, religious or national groups while
excluc:ting t:olitical groups. He explaineg· that the prohibition on
qenociële was intended to protect those groups in which membership
was ".inevitable."

['l~]her weas a distinction between those groups,
mE~mbershi opf which was inevitable, such as racial,
religious or national groupsl whose distinctive features
'rt.r :;:ermeanent; and those, membership of which was
V(Üuntary, such as political groups, whose distinctive
features were not permanent, it must be admitted that the
.dE:lstruction of the first type appeared most heinous in
the llght of the conscience of humanity, since it was

d:Lrected against human beings whom chance alone had
g1::-oupd together. Those pe.rsons should therefore be gi ven
a larger measure of protection. Although it was true that
pBoplE could change their nationality or their religion,
Sllch changes dÎd not in fact happen very often; national
and rE,ligious groups therefore belonged to the oategory
OlE'grc)ups, membership of whioh was inevitable (Id. at
99).

The se ~:ientimen wtese echoed by Mr. Lachs of Poland:

[I]t (the convention) should protect the individual where
h1e wau most vulnerable, which was within the group of 141021
08/09/93 16:01 '5'217 244 1478 COLLEGEOF L~

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which he wae a member in spite of hi:mself.
Ihe convention on genocide must seek ta protect
human beings ~hatever the colour of their skin, the god
they Horshipped and the national g:r:oups to which they
be long ed. Those who needed protection most were those who
could not alter thair status. For the idea of equality
'WitS of the very greatest importance (Id. at 1~1) •
' ~ .
'l'he pr·)tection of racial religious, national and ethnie groups
thus is based on the historie animosity directed against such
group!; as well as their cohesiveness, stability, inevitability ·of
meii!bere:hip and tradition. The concepts of racial and religious
groups are self...,evident. A raciai group, according to one UNESCO ,
spons<:>red s tudy ci ted by the Special Rapporteur on Genocide, is à
population ;roup which is cha:r:-acterized by some "'concentrations,
relative as to frequency and distribution, of herditary particles
(geneB) or vhysical.characters, which appear, fluctuate, and often
disappear in the course ·.of time . by~,~~1li-J .i.Qo.raLh.cO.f and/or
·cul.tol:-ar--·1:TH'5T· a~rTno~if·nsrtTcf"y"The te Question Of The
Preverltion .l~n dunishl!tent Of The Crime Of Genocide, Study prepared
by M:r:. · Nicode'me RUhashyankiko, Special Rapporteur,
E/CN.4JSub.:~/4 (u6y 4, 1978) ,at para. 74). sir Hartley Shawcross
of the United Kingdom noted during the sixth Conunittee's
consideration of the dra ft Genocide Convention that " t] here was no
doubt t:hat racial groups should be included. No one should be
persectu·ted hecause of the accident of his hirth within a certain
group" (3 UN GAOR at 60). Religious groups encompass bath theistic,
non-the.istic: and atheistic communities which are united by a single
spiri t.ual icleal (See Study Of The Question Of The Prevention And
Punishm.ent Clf The Crime Of Genocide, supra at para. 77). There is

little doubt: that religious groups within the terms of Convention
encompa! ~suslims. Mrs. Ikramullah of Pakistan emphasized that the
protection c,f religious groups was particularly vital given that
Muslims.had been the victims of genocide in India (3 U.N. GAOR C.6
at 10).
What collectivities are encompassed within national and
ethnic.al gre ups? The Ad Hoc Commi ttee On Genocide voted to amend
the Sec::r·etary-General' s draft and to protect "national 11groups (See
E/AC.25/7, at art. I; E/AC.25/SR.3 at 10,12; E/AC.25/SR.4, at 2.
see also Efll.C.2S/SR.10 at 15-16; and E/AC.25/SR.24 at 4). Member
St&tes vieHed the term "national" as encompassing "not
only •.. r1ationals of any country, but an ethnie group, whatever the
n&tiomt.lity of its members." (Remarks of Mr. Azkoul of Lebanon,
E/AC.25fSR.lO at 15. See also E/AC.25/SR.10 at 16).
Mr. Petren of Sweden, during the deliberations of the Sixth
com.mit'l:ee, ~•uccessful lyoposed to add the word '''ethnicaP"
tollowing tha word "'national"' in Article II (See 3 UN GAORat 98,
115 and A/C. E/230 and A/C. 6/230/Corr.l). This proposal was intended
'to clarify that a "national" group referred to those whose prirnary
identity rest:.ed on their affiliation with an established Nation­
state 'ilvhile"ethnical" group referred to cultural, linguistic or
other distinet g:roupings and minorities within or outside a State '5'217 244 1478 COLLEGEOF LAW 141022
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(See ;enerally remarks of Mr. Petren of sweden, id. at 97-98. Mr.
Petre:n que1·ieà whether the terin "national qroup'* meant "a group
enjoyinq civic rights in a given state." He pointed out that the
conveni~io thnen would not e:xtend protection to such groups 1if the
State ceast!d to exist or if i t were :.only in the· process of

forma·I::J.on. " some such groups, of course, might then be en ti tled to
protection as racial or religious groups. However He noted that
11is wc1uld :1ot pro.,:ect all groups and that an additional category,
ethnic:a1 groups,'' was requi.reà. as pointed to switzerland where
"the whole of the traditions of a group, wi th i ts cultural and
histori:cal :le):'it'age, had to be taken into account. In other cases,
the con1stit·Jient factor of a qro.up woulà be its language" id.) .
.Mr·Morozov of the Union of soviet Sociâlist Republics noted , j'
that "(a) n ~thriic aroup was a sub-group of a national group; it,,.
was a smallE~ crllectivity than the nation, but one whose existence
could never·:heless be of benefit to humanity" (3 UN GAOR at 106).
Mr. Raafat of Egypt disputeà the need to clarify the concept" of
national gr•>UP by incorporatJ:qg _th~ __te_r_m__et.hni.cal..His- .statement,
whic::nr--nroeiy·--ëTücTdates·-·-th-e sc ope of. the tenn ·"ethnical group, "
used th,e il lustration Qf. the "well-known problem of the German
minorities .ln Poland or of the Polish minorities in Germanyt and
the tJJl!'!,stlon of"the Sudeten Gérmans, (which] showed that the idea
of t.he .national group w-as perfectly clear" (Id. at 99-100).
Followinq ·f:he adoption of the swedish amendment, Mr. ·petren
clari.fied tbat if a linquistic qroup were unconnected with an
.axistinq State, it would be protected as an ethnical rather than as
a na,ti..c;)"tla.l group.In addition, he explained that the ter:m ethnical
grÇqp f;\ncompasses a group which i~ racially distinct, but whose
dqictirli ~ ~aa'cerintgc is i ts historical or cultural uniqueness
(::t;:a-.t115). Mr. Demes:min of Hati, in a. statement which captures
th:~::li;~tl in.iBaotna-Hnerce.zovina, added, that the "intermingling
bet;w~é racEi!S in certain regions bad, made the problem of race so
co:inplic~ thlt.te ià might be impossible, in certain cases, to
consider a given group as a racial group, although it oould.· not :be
denied c:üaseification as an ethnical group" (Id. at 116) •
Groups, of course, pften are persecuteà based on religion as
well· as na1~ionalit ory race.. The soviet Union unsuccessfully
proposed th;ett the Convention li:rnit religious genocide to those
cases - ill wh:_cn it is related to the persecution of a racial or
national. qrc·up (See sqviet amendment A/C-6/223, rejected ià. at
117). Mr. Mçrozov, in .Jexplaining the Soviet proposa!, noted that
"in all know:1 cases of genocide perpetrated on grounds of religion
it had. always been evident that nationality or race were
concom:i.t ~-aantns" (id. at 105). The Soviet proposal was rejected
due to t.he fact that it would have precluded the protection of a
reliqious grJup in those cases in which reliqious persecution was
not int::er-re lated to an attack on a racial or national group (See
remarke ~f 1-tr. Raafat of Egypt, id. at 116). Nevertheless, the
-soviet propoual highlights that in many cases that "the pretext of
religic>us ntrife was used •.. to conceal the r~al aims
pursued, •. [tlhe struggle was b~tween interests which were entirely
differemt from the divergent interests·of the religions concerned" 08/09/93 16:02 '5'217 244 1478
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(Remarks of Mr. Morozov, id. at 117).
E~osnia n.uslims and catholics and all non-Serbian Bosnians
clearly are being ,subjected to genocide by the Serbian forces based
upon their ~eligio nnd membership in ethnical g~oups within the
meaning of the Genocide Convention. The client forces of
"Yugoslavia (Serbia and Montenegro)" refuse to racognize and are
inten't: on exte:rminating all non-Serbian nationals in Bosnia­
HerzeçJo·vina. Re].,i~ou psrsecution of ethnical groups, of course,
is no·t new in ''"iûgoslavia (Serbia and M.onte.negro}. u ouring the
Sirth Commi'i;tee debate, Mr. Bartas of nthe former Yugoslavia" noted
that "[T]here had been cases of genocide for religious motives
within the same nation [the "former Yugoslavia"]. For those
reasons, hLs country had had to include provisions in its
legislation for the prevention and suppression of religious
genoc:ide as su ch" (Id. at 117) • '

F. Genocide May Entail Various Acts Which Destroy A Group In Whole·
Or Iri Part

Article. II'. specifies that genocide entails 1any of the fol1'owing
acts ... ··-·

(a) killing mernbers of the group;
(b). CG.using serous bodil y or mental harrn to members of the
group;
(c::)DE~liberate nflictirig on the group conditions of life
calculuted to bring about its physical destruction in whdne or in
parti
(d) !lltposing measures intended to prevent births within the
group;
(e} forcibly transferring children of the group to another
group.

The se acts were intended to be restrictive rather than
illustrative. A Soviet Amendroent in the Sixth Committee which
charact.eri;:;ed such acts as exeroplary was rejected (3 UN GAOR C. 6 at
173, 1'77. t;ee A/C.6/223}. A Chinese amendment to insert the words
111inoht.dinq the following'" bef ore the enumeration of acts
consti·tutiug qenocide also was defeated (Id. at 145.
A/C.6,/232/Hev.1). Mr. Ti-tsun Li of China explained that "it was
impos•sible to forseec to what means the perpetrators of the crime
might; resoc-t when they wished to destroy give.n groups" (Id. at
143). The majority of Member States, however 1 insisted that
individualn should "be provide.d notice as to the acts constituting
the crime t)f genocide. It also was feared that a failure to tully
enume~ra t=.he a.cts cons ti tu ting genocide would lead to a lack of
uniformity between the provisions of various· National criminal
code~~ (SeB remarks of Mr. Mani ni Y Ri' os of uruguay, Mr.
KaecJ<~enbee o<: kelgium and Mr. Amado of Brazil id. at 143, 144).
1he flrst sub-paragraph of the Genocide Convention prohibits
killing mE:mbers of a group. This is self-evident and entails
intent.ionally killing members of a group with the motive to destroy0 08/09/93 16: 03
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the grjoup fer reasons ranging from racial hatred to territorial
acquis:lt.ion.
The Sec~etary-General d'aft prohibits ''[c)ausing the death
of mem.bers of a~ group or injurinq their health or physical
integr:ity by •••group massacres or individual executions" (E/447 at·
art. I(II) (1) {a.),6). The Ad Hoc committee:modified this clause and
prohib.ited the ''(k) illinq members of the group" (E/794 at Article
Il(l) at.s actopt~ fdt E/AC.25/SR.l3). Mr. Ordonneau of France·noted
that th~s uub-parllgraph 1covered the murçl.er of mem:bers of a
group ••. [i]t did not provide for actions suçh as mutilation, or for
any of the fonns of violence which miqht lead to the death of
mem.bers of 2. qrouptt (E/AC.25/SR.l3 at 10).
The Ad !ioc comm.ittee provision was incorporated into the sixth
Connnittee dJ:aft (A/760 at· art. II (a) adopted at 3 UN GAOR c.6 at

177). M:l:'PEt'rez Perozo noted that 11he first sub-paraqraph, as li' _~. ·,._
intended by the Ad Hoc Collll\littee, included mass murder as well 'à...
inqividual execut:i.ons .•• ['rJhe death o;f an individual could bé.
considered ,:ts an act of g:~nocdd ié if was part of a series of
·ï;imrl-ar~--acttl·--a-i:m-iftg-- ot:_-ta-~!-1-"9. bo~awhichucthetio_n__
indiv:i.dualhelo 1(rvU~NedAiOR C.6 a.tl76. See art. I(II)(lf(a) in
Seqrert&riat's draft, s~pJ:a. ).r. Maktos of the United States,
s:p~a:J tsinC hair· of tije Aâ Hoc commmittee, clarified that the
QPIIUfd. h!t'.sèl:ecteQ. the word 1'kill!nq'" because it felt that
••t~ ~ &~~ 6E intênt haà. been made su:fficiently clear in the first
pa~t of ar:.icle II. ·It had never been a question of defining­
uript~~id,it killtg·ed as an act of genocide 11 {This statement was
m~êi n X'!!ply ta a question concerning the oorresponàence between
tbe Fr•nch and English texts ot Article II(a), id. at 177) .
..'!'h s~:JOnd sub-para,graph of the Genocid convention prohiblts
'c'(ç}.â"llsing seriousbodily or mental harm to members of the group. 11
Arit,;iÇJ.e I:J:(Il)(l) (c) of the Secretariat' s draft prohibits
"lC:la·q$ing the death of members of a group or injuring their health
or pl".i,y~ iteqaiy by •••mutilations and biological experiments
impC,aed fc1r other than curative purposes 11. (E/447 at art.
II (Il:) l) (c.), 6). Article ·II (2) of the Ad ~i~ commit tee Draft
states that genocide encompasses "(i}ropaiting t~~hysical integrity
of memJ~er of the group•• (adop't;:ed at E/AC.25/SR.l3 at 11-1~). This
article. wal:; adopted in response to the statement of Mr. Ordonneau
of F:rance ·;:;.bat there was a need to "provide for actions such as
mutilation or~ for any of the forms of violence which might lead to
the dèath cf members of a group" (E/AC.25/SR.13 at 10. For the text
of the~ prcposed French amenà.ment, see E/AC.25/SR.l3 at 9). ·Mr.
Ordonneau noted that while "item l covered the murder of members of
a group. .I"9em 2 should caver all actions directed against the
corporal inteqrity of members of a group" (E/AC.25/SR.13 at ll).

enCOillpass psychicth as wellttas physical supainraand was amendeà so as to to

prohibi11 ":c) ausinq serious bodily or mental harm to members of the
group (Sei! 3 U.N. GAORC.6 at 179-180). The phrase umental harm"
was inserted in r-esponse to a Chinese proposal to include acts of
geno<:ide c~mmitted through the use of narcotics (Japan, according
to the Chinese, had conunitted numerous such. acts ·against the08/09/93 16:03 '5"217 244 1478 COLLEGE OF LAW
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Chinese pOJIUlati on dur ing Worlà War II , id. at 1 i5• see
A/C.6/232/RE:v.l. China bad first proposed this amendment during the
deliberatior o~s ~he Ad Hoc Coll\ltlittee, see E/AC.25/SR.5 at 9. The
Chinese pro~osa l as adopted pursuant to an Indian modification o{
a United Kingdom amendment. The India.n proposal also su:bstituted
"serious ha::m" for "grievous harm". Id.' at 179. see A/C.ti/244).
This Et~d tl::m was interpreted as extending the sub-paraqraph to
encompa:Eil:stlte int'-fltional infliction of mental harm that did not
have physimtl répeicussions {See rema:rks of .Mr. Fitzmaurice of the
United Kingtlom, id. at 178).
Articll~ II (c) of the Genocide Convention provides that
genocide ent.ails "(d) eliberately inflioting on the group conditions
of life calculated to bring about its physical destruction in whole
or in part. 11This sub .pa.ragraph is derived ;from the seoretary­
Genera.l's dl·aft which speçi;fi te~t genocide, in part, consists o:t •·."''
"[c] attsing the death of l'riètnl:;Jer-fs a group or injuring their health ·
or physical inteqrity py.,•• suhjéction to conditions of life which
by laok of proper hpusin,g, _ clothing, food, hygiene and m,dical
-clare, ~--~ex~'l:'-l'HY:&-i.ea-l---.e-xer litey io no-.t-:a@r~leJ.:!,._"Ç
in the deb.Llità-tion f!)t Bea''th of the indiviàuals ••. 11 (E/ 447 at
articlfè-.! (I:r)(l) (b) ), 6). The commentary to the Secretary-General's
draft notes that this provision is intended to prohibit subjecting
a gro1it) to a "'slow deatp. 1" While in certain cases there may be
ambigu.i./t;,y <:oncerning whethèr there is the requisite intent to
co~it genc•cie\e, the commentary observes that "if members of a
grou,p ofhuman beings are placed in concentration camps where the
annua.l dea1:h rate is thirt.y per cent to forty per cent, the
inten'Cilon to commit genocide is unquestionable" (id. at 25).
~ticle II (3) of the Ad :aoc Coltllnittee's draft did not
enumeràte the conditions likely to result in death and states that
qenbcide in volves 1(i) nflicting on roembers of the group measures or
conditions of life aimed at causing their deaths"(E/794 at
art..II(J) ,: adopted at E/AC.25/SR.l3 at 14. See remarks of Mr.
Ordonneau clf France, E/AC.25/SR.l3 at 11). In contrast to the
Secreta:ry-G·eneral's draf-t, the Ad Hoc Committee's provision was
lim.ited to conditions -which are aimed exclusively at causing the
death of meml:.lers of the group and does not encompass measures which
are in"t.endHd to weaken or enf eeble (See remarks ot Mr. Martes of
the United States, E/AC."25/Sr.l3 at 10, 11). The purpose of this
provision, acco:rdinq to Mr. Azkoul of Lebanon, was that ttthe idea
of physica.l extermination must extend over the •.. infliction on
groups of the population of conditions of life leading to
exte:r·minat;.on (E/AC.25/SR.4 at 14. A requirem.ent that such acts be
preme~ditat wua_tw iihdrawn by the the soviet Union. See remarks of
Mr. Moroz)v of the Union of Soviet socialist Republics,
E/AC. 25/SR ..l3 at 12). Each and every member of the group need not
:be exposed to such conditions (Remarks of Mr. Perez-Perozo ot
Vene2;ue1a, E/AC. 25/SR.13 at 13) . The sub-parag:raph also does not
enumerate ·:.he conditions which might lee~ tod the extermination of
a group and is intended to be broadly interpreted (See remarks ot
Mr. :Perez-Perozo of Venezueala, E/AC.25/SR.13 at 10 and at 13
am:ending t.h.esoviet proposal ~nd the remarks of Mr. Morozov of the

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soviét sociELlist Republics, id~ at 13. See also remarks of Mr.
Morozov, E/AC.25/SR.4 at l5}. Mr. Morozov of!ered an example of the
type of condition, which are encompassed within this provision:

[T]he ghetto, where the Jews were confined [by the Nazis]
in conè.itions which, either by star'Vation or by illness
accompe.nied by the absence of medical care, led ta their
eX"tinct:ion! ~st certainly be regarded as ~n instrument
o,f gentcide. ~f any group were placed on rat1.ons so short
as to nake its extinction inevitable, merely because it
belongnd to a certain nationality, race or religion, the
f'act w:~uld also come under the category of qenocidal
crime :E/Ac. 25/SR-4 at 14). ·

The Sec!retariat and A.d.Hoc CollUllittee drafts form the basis of-~v_'
the article a.dopted by the Sixth comnlit.tee. Article II (c) of the
Genocide convention providee; that genocide entails "[d]eliberately
infli(~ti nng the g~oup conditions or life calculated to bring
al>out--tts--ph~#f1~-des1:-~t~ ...r_.i_p_rt-wnh.i.l.6e7.a~ _art.
Il(6),9 adoptad at 3 UN G.A()R C.6 at lS3). The 1central factor of
the o~ime' i' .·the intent to impos$ living conditions which are
likel,y to rusult in d~ath• The failure to enumerate such conditions
is bël;sed on the realistic consideration that "it was impossible to
provide.for-all measure whioh might be taken in order to create the
livinq conc~ition contemplated•• (Remarks of Mr. Morozov of the
sov~~ joci ~lis t epublics, 3 UNGAORc. 6 at 18o) • Mr. Kaeokenbeeck
ot ~.19~u cmariried that the word 1deliberate 11 in the this sul:έ
pax-~gra efers to the intentional creation of conditions of life
rat}lèr than to intent to detroy a group or groups (Id. at 182. The
wo:rd '"deliberate' in the first part of the article referred to the
defini 1;e i ntent to des troy a group or groups. Id. The word
"inflictinç·" was adopted "because •.• criminal responsibility could
only be est.ablished in cases where measures or conditions of lifé
had reall~ been inflicted upon the group." Remarks of Mr.
Kaeckenbeec:k of Belgium, id. at 176). The Sixth Committee rejected
an Urguayan. a111endment to include conditions which resulted in
"'disease 1::1ra weakening"' of members of the group (Id. at 180
rejectinq 1L/C.6/209).
Artic:_e II (c} provides that genocide enta ils " [i]lllPCISing
measures intended to prevent births within the group." The
Secretary-c;eneral's draft provides that genocide encompasses

"Restricting births by sterilization andjor compulsory
abortion •.. segregation of the sexes ••. or obstacles to marriage"
(E/447 at ar1. I(II)(2),6). 11 The commentary refers to this as
"' biolcgi'b<:tl " genocide or measures aimed at the extinction of
which> ofthemangroupqs cannet syssurvive •.•.eThesetionrestrictionshs n'layutbe
phys:Lcall legal or social" (id. at 26).

'!'he ]~rovisio nrafted by the Ad Hoc Committee did not
enumerate the constituient acts- of "biological genocide.'' Article
!I(4) states that genocide includes "[i]mposing measures intended
to pretvent births within the group" (E/794 at art. II(4) 15 adopted /

{
/
1i"1)

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COLLEGE OF LAW l4021

24

at E/J~ C./.!:R.13 at l4). This Article is intended to be broadly
interpreted so as to include the castration, compulsory abortion
and tlle: segregat~o on the sexes (See remarks of Mr. Azkoul of
Lebancm, E/AC. 25/SR.13 at l1 1 ~4 and Mr. Rudzinski of Poland, id ..
at 13. see j~ticle I(II) (2) of the SecrE:ltariat's draft, supra).
'l'he Aé. Hoc Co:mmittee' s version was adopted by the Si:x:th
Conunit:tee and was incorporated into the Genocide Convention
(Adopted, 3 UN pA~R C.6 at 184). Mr. Abdoh of Iran noted that the
Commi1~tee draf·f:', like the version adopted by the Ad Hoc
committ.ee, is intended to be 1general and comprehensive and could
be int:erpreted as covering sterilization ahd compulsory abortion"
(id. at. 183).
Ar·ticl~ II (e) provides that genocide includes the act of
11[f] orcibly transferring children of the group to another group." ',, ·•
The SeGret.nry-General's draft, in Article I(II) (3) (a) inoludes'
within the definition of genocide, 1[d]estroying the specifie
oharact;eristics of the group by ••• forced transfer of children to
another hul!lan group"(E/447 at 6). The commentary states that the
separ;ition of childrëll from their parents results in "forcing upon
the fot:mer at an impressionable and receptive age a culture and

mentality different from their parents'. This process tends to
bring :eLbout the disappearanoe of the group as a cultural unit in a
relatively short time" (Id. at 27). The Ad Hoc ColiilUittee did not
includethis provision within the àefinition of physical genocide.
HoweveJ:, tlle transfer 'of children arguably may be encompassed
within Article III's prohibition on cultural genocide (E/794 at 6.
But se~!! E/AC.25/SR.14 at 14-16).
The prohibition on the forced transfer of children was
reinsat.ed cluring the sixth Committee' s proceedinqs pur suant to a
Greek amen<lment (3 UN GAOR C.6 at 186 adopted id. at 190). Mr.
Va1lindas of Greeoe observed that 11[t]he forced transfer of
childrjin cc•uld be as effective a means of destroying a human group
as that of imposing roeasures intended to prevent births or
inflicting conditions of life likely to cause death" (Id. at 186-
187). l~r. ~:ann Yi Ri' os of Uruguay noted that "(s) ince measures to
preve:nt biiths had been condemned, there was reason also to condemn
measures i:.1tended to destroy a new generation through abducting
infants, forcing them to change their religion and educating them
to be•come Hnemies of their own people 11 (Id. at 187). Mr. Martos of
the united states queried 1what difference there was frolll the point
of view of the destruction of a group between measures to prevent
birth half an hour before birth and abduction half an hour after
the birth 11 (Id. at 187). He later observed that "in the eyes of a
mother, there was little difference between the prevention of a
birth by ~bortion and the forcible abduction of a child shortly
aftel~ its birth 11 {Id. at 189). Pe'rez; Peroz:o of venezuela
sununarized the views of those Member States which supported the
Gree}~ prop :;~sal:

[T]he forced transfer of children to a group where they
would be given an education different from that of their
own g:::-oup, and would have. new eus toms, a new religion ande 08/09/93 16: 06 "5'217 244 1478 COLLEGE OF LAW
~028

25

Jprobably a new language, ·was in practice tantamount to
·the destruction of the ir group, whose future depènded on
t.tH'ltgeneration of children. Such transfer might be made
:from a group with a low standard of civilization ..• to a
hlghly civilized group ••. yet if. the intev.t of the
·transfer were the destruction of the group, a crime of
genocide would undoubtedly have been committed (Id. at
1Si5). :...~

The S:Lxth Committee rejected a Syrian proposal to extend
Article II~ ·:o include the 1imposition of measures to obliqe melllbers
of a q1:-oup to abandon the ir· home in order to escape the threat of
subse·quent i11-treatment 11 (A/C. 6/234 was rejected, id. at 186. See.
generally f144 7 at art. I (II) (3) (b)) . Mr. 'l'arazi of Syria argu~ d.,_f
that measures intended to force a group from their homes were "f~i
more serions than ill-treatmentn (3· UN GAOR C.6 at 184). These
sentimènts were echo·ed by Mr. Ba:rtos of "the former Yugoslavia•• wh~
noted that i•the ·Nazis naQ: dispersed a Slav majority from a certain
· · ·-pare--o-r--r-e~!'fëz~·-·-yuï;J'(r:rta-vi~·±rr-·-o r··.··.Germ·t-n-···-esta·b:lish
ma,jority tller,e. That . action was tantamount to the deliberate
destruci3tior. of a group. Genocide could bé committed by forcing
membérs o·f a qroup tô abandon their homes" (Id. at 184-185).
McJst lllember State·s eondemned the expulsion of groups from

thGdr home;, but noted that such actions were not encompassed
wtthin the definition of génocide (See remarks of Mr. Fitz:m:aurice
of the .TJnii:ed Kingdom and Mr. Maktos of the United States, id. at
1S5). 11ob:'.~:orozo of the Union of Soviet Socialist Republics noted
that (m]e;tsures compelling members of a group to abandon the ir
hol\\e •.w~e1·e rather a consequence of genocide" (Id. at 185) .
Never·tJtl.elee:s, the foroed expulsion of a group from the ir homes
certai:nly ~-ndicat eslllotive to 1destroy 11 a group ttin whole or in
part. 11 lt nlso may constitute an act of genocide within the means
of Artioleu II{b) and II(o) of the Convention.
There can be little doubt that acts of genocide are being
direct·ed aqainst Bosnian Musli:ms, Catholics a.nd non-Serbian
Bosnia:ns. :cnte.ntional mass killings and bombardments of civilian
centers have been accompanied by the deliberate qhettoization,
starvation. torture and a deniai of medical care to these
populationl;. This terrorization, along with the policy of torture
and abuse, have resulted in extraordinary mental harm. The
systematic rape of women not only has resulted in mental harm, but
has led these women to procure abortions or to abandon their
babies .• Th:.s, in effect, has prevented births within the group and
has led to the transfer of children to Serbian families.

G. Ind.ivic.ual criminal Liability Is BroadlY. Defined so As To
Frevent As Well As To Punish Acts Of Genocide

Article III of the Genocide Convention defines the scope of
individual penal liability .

..The eollowing acts shall be punishable:c 08/09/93 16:06 '5"217 244 1478 COLLEGE OF LAW ~029

26

(<~) GE:nocide;
(b) Cc,nspiracy to commit ge.nocide;
('~ D)lrect ~and public inoiteinent to commit genocide;
(d) At.tempt: to oollùltit genocide;
(•a) C<:1mplicity in genocide."

(i:l)Genocide: Sub-paragraph (a) provides for the punishment of
genocide aH de.fised in Article II. There is no provision in the
Secreti:lry-c;enéraft s which explici tl y penalizes genocide. The Ad Hoc
Commit··t.ee included a provision which punishes 11[g] enocide as
defined in Articles II and III." The inclusion of this Article was
based c:m the belief that Article II should provide a comprehensive
enumeration of all acts which are punishable under the Convention."
The Co·mmitt.ee concluded that it was logical to begin with th~ ,_
principal act of genocide (E/794 at 7-8 adopted E/AC.25/SlL17 ":~t
9). This pJ:ovision was modified and included without debate in the
Sixth Comnüttee draft (3 UN GAOR C.6 at 211).
(lb) cc.nspiracy: The second sub-paragraph penalizes conspiracy
to c·orranit qenoc·ide.- -Conspi:racy- -is· punisthable under both t:he
Secretaria't:'s and the Ad Hoc ConunitteeJs drafts (E/447, at art.
II (II) (3) 1 7; E/794 at art. IV(b) ·, 7) • The coromentary to the
Secretary.-Cieneral' s draft observes that "(g) enocide can hardly be
oommitt.ed oh a large scale without some form of agreement. Renee
the 1ne1re ::act of conspiracy should be punishable even if no
'prepa:t:ato1·y act' has yet taken place 11 (E/447 at 31).
ArticJ.e IV of the Ad Hoc com:rn.ttee 1s dra ft punishes
"[g] e.n,::>cidEI1(E/794 at 7). The commentary notes that conspiracy to
commit gen•,cide must be puni shed "in viaw of the gravi ty of the

crime ·of günocide and of the fact that in practice genocide is a
oolle.c;tive cri:me, presu:pposing the collaboration of a greater or
sma11e:t" nwnber of personsu (Id. at 8). Mr. Morozov of the Union of
Sovie.t Soc lalist Republics explained that a criminal conspiracy
"included cLgreement to commit genocide, even if commission of the
act. h.ad no-t: begun" {E/AC. 25/SR.lG at 4}. Mr. Martos of the United
States, spE1akinq as Chair, elaborated that in Anglo-Saxon law that
n'con.spiraoy' was an offence consisting in the agreement of two or
mora persans to affect any unlawful purpose 11 (Id.). This, of
cours.e, is consistent with the traditional definition which defines
conspiracy as ua combination between two or more persons to
accomp.lish a criminal or unlawful act, or to do a lawful act by
crindn•al o::- unlawful means" (See ROLLIN M. PERKINS & RONALD N.
BOYCE:, CRIHINAL LAW 681 (3rd ed. 1982) .There does not appear to be
a requiremnnt that an evert act was taken in furtherance of this
illic:i·t agreement. 3
The "13 i.ltth Committee's draft also includes a prohibition on
1(c] CinspirHcy to commit genocide 11 (A/760 at art .. III (b), 10 adopted
3 UN G.A.OR c. 6 at 212). Mr. Maktos of the United States reiterated
that the 11vord 'conspiracy' has a very precise meaning in Anglo­
saxon law; it meant the agreement between two or more persans to
commi.t an i.lnlawful act 11 (Id. at 212). Mr. Raafat of Egypt noted
that the notion of conspi:racy had be.en introduced into. Egyptian law
and connotEld "the connivance of several parsons to commit a crime 1c 08/09/93 16:07 '5'217 244 1478 COLLEGEOF LAW ~030

f

27

whethe:t: the crime was successful or not" (Id.) •
Sc1me insiqht into the expansive scope of liabili ty under the
charge of ~onsp~racy is indicated by tha American and British
trials of the administration and staff of the Nazi concentration
camps. Theue individuals were collectively prosecuted for the
commission of specifie criminal offenses as well as for having
acted in pul~suan ce a common design which, the note to The· Dachau
Concentra ti ::m pa.lJTPT.l:"ial observes, does not 1differ materially"
from conspi racy (other than the fa ct that no agreement need be
demomstratei). In the Dachau trial, fo:rty defendants were convicted
of hë:tvinq acti vely and knowingly participated in a collUtlon
enterp:r:·ise to abuse, starve torture an<i murder the imnates of the
camp. Defemlants who administered 1 controlled or regimented inmates ·
were adjudged t.o have abetted the common enterp:rise despite tne•·. -'
fact that t.here was no demonstration that they bad personally ·
mistrea.ted the inmates (The Trial Of Martin Got tf ired Weiss And
Thirty-Nine Others (Case No. 60) XI LAWREPORTS OF TRIALS OF WAR
CRIMIN'ALS 5, 15 (1949)). In summarizing the evidence in the Belsen
··~ir:1:n·~--- --in:n'·l.nra~-xavocate·--ôliEilliiatiiËi".Easis···of tfie-cliarge
against the forty-five defendants, a.ll of whom were convicted of
h •....knowinqly acted in furth.erance of a common design to abuse and
aéi~rmin thete inmates of the Belsen Auschwitz death camps.

[I] n G ermany in the war years there was a system of
co,ncent.ration cam.ps of which Auschwitz and Belsen were
1:wo; tbat in these camps· it was the practice to treat
p~ople, especially the unfortunate Jews, as if they were
of no account and had no r-ights whatsoever; that the
sta.ff of these concentration camps were deliberately
t:à)dnq part in a procedure which too:j{no account of these
wretch•!!.d people's lives; that there was calculated mass·
murder such as at Auschwitz; that there was a calculated
disreqï~ rd the ordinary duties which fell upon a staff
to look after the well-being and heal th of people at
Belsen~ that throughout these camps the staff were made
quite 'learly to understand that the brutalities, ill­
treatitll!nt, and matters of that ki nd would not be puni shed
if the:r took place at the expense of the Jews; and that
there ·,ras a common concerted design of the staff to do
these terrible things (Trial of Josef Krarne:r And 44
Qthers (Case No. 10) II LAW REPORTS OF TRIALS OF WAR
CRIMINi\LS l, 121 {1949)).

The Se:::::retary-Ceneral' s draft includes under the 1crime of
genocide '' ;o-called prepara tory acts. 'l'hese in elude studies and
resea:t~ 1 ooh developing techniques of genocide as well as the
settirtg up l)f installations, manufacturing obtaining, possessing
or the1 :suppJ.ying of articles· or substances wi th the knowledge that
they a.r•e int:ended for genocide; and is:suing instructions or orders
and dis·t:rib"l.lting tasks ~ith a view to comntitting genocide (E/447 at
art. 1:r(2), 7). The ca:mmentary argues that preparatory acts should
11
be punlshable given that genocide is an exti-amely grave" and '5'217 244 1478 COLLEGE OF LAW @031
08/09/93 :16:08 --···---

28

"irre:parable'' crime which usually requires extensive preparation by
a oomparatively large number of individuals (Id. at 30). The Ad Hoc
Co:rnmi't:t:ee initiq.lly decided to punish (E/AC. 25/SR.l6 at 12. se.e
Soviet draft, E/AC.25/7 at art. IV(2), 2; and E/AC.25/SR.l5 at 2) 1
and lêitter deleted, preparatory aots· from Article III (See
E/AC.25/SR.l6 at 6; E/AC.25/SR.17 at 7, 9). one objection w~s that
such preparatory acts, when undertaken with the intent to commit
qenoc;dde, IJtay;.b~ punishable as an attemJ?t or as complicity to
comm~t genocide· (See remarks of Mr. Ordonneau of France,
E/AC.25/SR.l7 at 3). Mr. Perez-Perozo of Venezuela noted that in
Latin A.meri:::a.that the "preparation of a crime was not punishable
in i ts•:rtlf. It haà at least to .be followed by a beginning of
commission and thus become an attempt. If attempt and complioity"'·
were made ~;unisha tbelee, was no need to 'mention preparatio:Q".>). '·
(E/AC,.25/SR.17 at 4). The conunentary to the Report Of The Ad Ho6
Commit:tee 0:1 Genocide notes that in the "most serious cases where
lt would be desirable to punish the authors" that preparatory acts
could be pullished as oonspiracy or a:;; (JOlt\J>.~_iCji~y.

If the construction ·of crematory ovens or the adaptation
c,f mot ::>r-cars to the purpose of killing the occupants
v.rith nc,xiou!'i gases were at issue, auch acts requiring the
c:o-opel~a. oti on certain number of persons, would
a.ccord:.ngly come under the heading of "conspiracy to
co:mmit qenocide" even if genocide were not finally
co:auniti:ed, and under the heading of "complicty" if
ge:nocide were oonunitted (E/794 at 8) .

D~~ing the Sixth Committee debates, the Soviet Union again
propos ad to prohibi t tho se acts which · cons ti tuted the direct
preparation for the crime of genocide (A/C. 6/215/Rev.l at para
4(e.}, 3. See remarks of Mr. Morozov, 3 UN GAORat 234). Mr. Bartos
of "the formar Yuqoslavia" noted that the punishrnent of preparatory
acts wa1;; nec1essary in order ta prevent the type of genocide which
had beet'l carried out hy Nazi forces against Slavs and Jews (Id. at
235}. A. nulllber of Member States, however, stressed that such
p:ceparat:ory. acts, when undertaken with the intent to collllnit

qenocide, WE~re punishable as complicity, conspiracy, attempt or
incite:mEmt to commit genocide {See remarks of Mr. Raafat of Egypt,
id. at ;::37; •n-. Maktos of the United States, id.; Mr. Fitzmaurice,
id. at .:2:38; :tnd Mr. A:bdoh of Iran, id. at 240}. Mr Raafat of Egypt
noted ·that!

Most of the acts enwnerated in the amendment of the
S•::~v ·nein constituted, in the most serious cases, acts
o:f corle:piracy and complicity. Thus the s.etting up of
in~S:tallatio ands the manufacture or supply of substances
tru:~x s·rious offences from the point of view of
Ct)tnplicity; the act of giving instructions or assigning
tas:ks c:mstit.uted oonspiracy (id. at 237).

Mr. Abdc)h of r:ran reiterated that "(t) he rejection of the USSR COLLEGE OF LAW 141032
• 08/09/93 16:08 '6'217 244 1478 ·- ··-- ··---- -·---·--~---------

29

amenèlment uould not prevent the punishment of preparatory acts in
the :a1ost surious cases, under the heaà.inqs of complicty, attempt,
incite:ment and,~ above all, conspiracy" (Id. at 240. see also
remark:s of Mr. Spiropoulos of Greece, id. at 238}.
The (;enocide Convention thus :clearly anticipates that
prepar;!!ltO:t"· acts unà.ertaken wi th the intent to commit genocide,
such as n~;ugoslav i(Se'rbia and Montenegro) 11 supply of arms,
troops and proyi~ons, are punishable unde+ the various provisions
of Art:lcle Irr.
(c) I.rJ.aitement: Sub-paragraph (c) punishes "(d) irect and
public incitement to co~it genocide." Article II (II) (2) of the
Secretary-General's draft penalizes "direct publio incitement to.
any act of qenocide, whe.ther the inciternent he successfu1 ot;, ,
not" (E/447 at art. II (II) (2) 1 7). The co:nunentary clarifies tha,:t,
this provision enoompasses "direct appeals to the public by means
of speeches, radio or press, inciting it to genocide." Such appeals
are punishable whether articulated a.s part of a systematic plan or
merely are th~ expi;esaions __f_ ~-:~lngJ indivgdual (Id. at 31) .• ·
----------··lfhce-·--Art-COlllliliEtee draft, in Article IV(c), prohibits
11(d) iretct incitement in ·publio or in private to commit genocià.e
whe.the::r such incitement be successful or not" (Id. at 7). The Ad
Hoc cpmrn.ittee attempt.ed to clarify the scope of. the Sect"etary­
General' s clraft.. A Vene2uelan amendment was accepted which provided
for tb~ _Jnt$Hrtion of the woràs "'publicly or privately'" after the
word ,.,d~~e,;,t anyd' "as intended to "obviate the need ta insert
furtb~t p~rticulars s,ch as '"press, radio, etc" (Adopted at
E/AC.25/S~. :tL62. See remarks of Mr. ordonnneau of France, id. a.t

11). A.naP,âitional Venezuelan amendment 11 adàed the words "whether
the i'nt:litment :be successful or 11ot. t According to Mr. Pe'rez
Perozo the latter clarified that the purpose of the Convention was
not merely tc punish the crime of genoeide, but alea to prevent it"
(Id. at 3). A number of Memher States noted that this modification
was superfl uous, but .supported the Venezuelan amendment (See
remarks of Mr. Ordonnea.u of France, id. at 2; Mr. Azkoul of
Lebanon ,, id. at 3; Mr. Martos of the United states, id. at 3) .
'l'he si~c.t Cohmmittee incorporated a provision based on the
Secretary-Generalts draft whioh penali2es 11(à.) irect and public
incite.mEmt 1:.0 conuuit genocide" (A/760 at art. IIl(o), 10. The
language 10.1:"in private" and of 1whether such incitement be
successful or not" were exoluded pursuant to a Belg-ian amendment,
(A/C.6/217, adopted 3 UN GAOR C.6 at 229-331. A United States
amenàmerlt te omit the punishrnent ot incitement as a violation of
freedom of speech was rejected. See AfC. 6/214 rejeoted, id. at 229.
see alS() Ajc. 6/218). The language in the Ad Roc draft, "whether
such inc::it~e bent successful or not, .. was viewed as supe:rfluous:
"from t.he leual point of view. Even if that idea ·were not laid down
specif:Lcally in the text, incitement woulà be punished in any case.
Only if sucoHssful incitement were specifically inoluded among the
punishable a~ts would it 'follow that unsuccessful incitement was
not punishab:Le" (Remarks of Mr. Fitzmaurice of the Unit._d Kingdom,
id. at 231). Mr. Bartos of the "former Yugoslavia" strongly
support:ed th~~ punishment of incitement to genocide:

_..-..--- ··-·-~---- ..··· '5'217 244 1478 COLLEGEOF LAW __ _ 141033
08/09/93 16:09

30

The peoples ~ho had been victims of acts of genocide
d.uring the Second World War were anxious above all that
lil.1lChac:ts s{lould never be repeated. Yet the first stage
of' tho!;e crimes had been the preparation and mobilization
<:)fthe masses .•. [t]he first step in the campaign against
qenoicie would be to prevent incitement to the crün.~.
st.ates should be under the obligation to prevent and
pu.nish ge~oqide. One way of preventing it was to state

1~ba t iberty' should be regulated so as to avoid anarchy
(216).

loir. Mol~ozo vf the Union of Soviet Socialist Republics queried
"how .... the :_nciters and organizers of the crime could be allowed ta 7"
escape puniahment, when they were the ones really responsible fQ,r
the at;rocit:Les conunitted" (Id. at 219). Mr. Federspiel of Denmark'
note.d t.hat "(i]t would not be sufficient to punish only intent,
complicity and other preparatory acts alone in arder to prevent
genocide; ii:was essential to punish the guilty persans a.t the most
danqerous st:a·9e of-the c·riroe; the stage of incitement" (Id. at
220). lo!r. lllaktos of the United states observed that although
incitem,ent is separably punishable, that incitement may comprise an
attempt or an evert act of conspiraoy to commit genocide (id. at
213).
S-olm_e illdication of the scope of incitment under the Genocide
Convelltion is illustrated by the prosecution and conviction of Nazi
war crirninal Julius streicher. Streicher, one of the first members
of the: Natiomü Socialist Party and publisher of an anti~semitic
weekly JLn ~azi Ger111any, was oonvicted by the International Mil.itary
Tribunal at :-:Turemberg of Crimes against Humanity. Streicher incited
hatred (:tgairtst Jews and called for the annihilation of the Jewish
race. In December 1941 he wrote that "' [i] f the danqer of the
reproduc.tior. of that ourse of God in Jewish blood is finally to
come to an ond, then there is only one way--the extermination of
that pe1ople whose father is the devil. '" The Tribunal ooncluded
that S;t:reicller' s incitement to murder and extermination 1at the
time when J"ews in the East were being killed under the most
horribla cor~itions olearly constitutes persecution on political
and racial g::.-ounds in connection with Wal:"crimes, as defined by the
charte:r 1 and constitutes a Crime against Humanity" (XXII TRIAL OF
THE MA,J"()RWAR CRIINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL
548-54~9 (191-8) (Judgment)) . The Genocide convention does not
require that incitement to genocide must be connected with a War
Crime ,ol ~:dme against Peace. Under the terms of the Convention,
the kno111ing and intemtional advocacy of the "extermination" of a
racial, reli9ious, ethnie or national group consti tutes a violation
of Articùe III (c) .
A convj ction for inoi tement appears to require proof of a
specifie! inb~nt to provoke ethers to act. Hans Fritzche rose in the
Nazi hureaUI::lracy to the Head of the Radio Division of the
Propaganda M:_nistry. The International Mili tary Tribunal determined

that Fritzsd1e made strong statements "of a propagandistic 11nature"
in his radio broadcasts. However,·the Tribuanal was not prepared08/09/93 16:10 ti'217 244 1478 COLLEGE OF LAW
14]034

31

to hold tha t they were intended to in ci te the German people to
commit •:t.troc:ities on conquered peoples, and he cannot be held to
have be«a~ an participant in the crimes charged. His aim was rather
to aro·une popular ~sentim en stpport of :ai tl er and the Gernan war
effort.'" (Id. at 584-585. It is significant that theré was no
evidence that Fritzche èVêr called for the extermination o:f Jews
and ot.h.er groups or that he was cognizant of the ongoin9 Nazi
l?rogra.m of geno9i~ (Id .. at 584. A statement which is ma~e with the
l.ntent; 1:oprovoke and whlch may forseeably provoke genoc1.de clearly
consit:utes :.ncitement to genocide. No direct reference to killing
or ext:erlnination is required}.
Inci teHent to genocide. through the mass media clearly is
encompassed within Article III (c). Mr. Morozov of the Union of
Soviet: Socialist Rêpublics attempted unsuécessfully during the
procee~din gs thé Ad Hoc Cornmittee On Genocide to include :a"
separa te article prohibi ting propaganda in the media aimed at 1
incitem.ent i~o racial, national or religious enmity or hatred and at
provoking t:1e conunission of the crime of genocide.· He argued that
the--media w.as one of-·the·most -effec-tive instruments for provo:King
peqple to engage in genocide (E/AC.25/SR.l6 at 6-7. See E/447 at
art. !II 1 7). M:r. Azk.oul of Lebanon pointed out that "the committee
had alrea.d:r provided for it by declaring public incitement
un.law.full. The USSR amendment "11/ould therefore be
supe.rfhtous 1(E/AC. 25/SR.16 at 9. The USSR proposa! was rejected,
id. at 11).
'rbe So•l'iet Union again failed to gain passage of the amendment
qurint;J the proceedings of the Sixth Com:mittee (A/C. 6/215/Rev.l
rl!:iect.Eld 3 UN GAOR at 253). Mr. Bartas of the "tonne-r Yugoslavia"
~t.~t. tedt "[p]ropaganda which stirred up hatred must be punished
bE).cau ise~was at the very source of acts of genocide; and the
campaign against that crime could be effectively organized unless
the mei!sUrE prsposed in the amendment of the Soviet Union were
adqpted" (::d. at 250). However, Mr. Pe'rez Perozo of Venezuela
pointed. out. t.hat "it would be difficult to imagine propaganda in
favou:r of ·:r~tmoc whiche would not at the saro.e time constitute
incitetnent to that cri:ma (genocide] 11 (Id.).
High contracting Parties also possess the legal obligation to
disband organizations which are Clevoted to the incitement to
genocide. ~rr. Morozov of the Soviet Union unsuccessfully proposed
an am,erldment which required States Parties to disband organizations
aimed ut inciting racial, national or religious hatred or the crime
of ge!nocidu {E/AC.25/SR.6 at 7, 10 rejected id. at 12. See also
E/447 at :J.rt. XI, 44). The Ad Hoc Committee concluded that
Signa.t1ory .3tates already were obligated under the Convention to
disba.nd o,r3"ahizations which incited to genocide. Mr. Azkoul of
Leba:r.ton st<tted "that if genocide were considered as a crime, any
incit~e:men tt genocide would also be a crime. consequently
organizations provoking genocide must be disbanded 11 (E/AC.25/SR.6
at 1:1.. See remarks of Mr. Pe'rez Perozo of Venezuela arguing that
such organ.Lzations constituted illegal conspiracies, id. at 7).
The same proposal was rejected by the sixth Committee (See
A/C.Ei/215/i~ev. al. para. 10, 3 réjected 3 UN GAOR at 470). Mr.08/09/93 16:10 '8"217 244 1478 COLLEGE OF LAW 141035

32

Raafat of ::ilgypt pointed out that such organizations constituted
illega:L conspiracies to commit genocide and were engaged in direct,
public incitement in violation of the Convention (Id. at 464). Mr.
zourek of czechoslovakia noted that High Contracting Parties were
obliga1:ed to punish genocide and thi!t Member States "should
therefc::>re 'enact the necessary legislation' for the eventual
mcdific::atic1n of the ir cens ti tut ions, to enable them to dis band
organizatic: w~hcswe purpose was tc incite ta the commission of acts
of gen()Cide u (Id. ·àt 467). The Soviet proposa! thus was regarded as
superfluo .u~States Parties to the Genocide Convention clea.rly are
requir•:!d t' to disband organizations engaged in in ci tement tc
genocide (Hee generally remarks of Mr. Fitz:maurice cf the United
Kingdom 1 icl. at 460; and the remarks of Mr. Maktos of the Unitedo
States, id. at 459-460). . ?
(d). J~ttempt : rticle III{d} prohibits "[a]tte:mpt to coll'llll.i.t
genocicie." This provision was included without comment in ths
Secret<:..ry-General's· draft (E/447 at art. II(!} {1}, 7). Thé sama
languac;e "'as incorporated into the Ad Hoc Committee Draft
Convention (E/79-zt:·-at-·a:rt;·IV(d), 7 adopted--a.t E/AC;25/SR.l6 at 12)
and wa~; then accepted without debate by the Sixth Conunittee (3 U.N.
GAOR at 301) • The. definition of the criminal attempt is fairly
uniform across legal systems and requires a substantial step
towardl:; a criminal offense with spècific intent to commit that
partiClll.ar crime (PERKINS & BOYCE, supra at 611).
(1e} Compliaity: Article III (e) punishes "(c) omplicity in
genocide." Article II(II) (1) of the Secretariat's draft penalizes
11
Wilful participation in acts of genocide of whatever
descriJption"(E/447 at art. II(II)(l) at 7).This open-ended
provis.ion js intended to encompass involvement by both "principals
and accessc~ies" (Id. at 30).
The Ad Hoc Committee draft modified this sub-parag':caph to
punish 11(c) omplioity in any of the aots enumerated in this Article"
(E/794 at art. IV(e), 7). The Ad Hoc Committee oraft crginally
provid1ed f,)r the punishment of "(c) omplicity or other fonns of
conspi:t'acy for the colnlnission of genocide 11 (See Union of Soviet
Sccia.list Hepublics Basic l?r inciples Of A Convention On Genocide,
E/AC.25/7 ilt art. V(3) ,2). The Ad Hoc Corn:mittee voted to delete
"'or ~my l)ther form of complicty 111 (E/AC.25/SR.16 at 5). Mr.
Rudz i.n:ski cf Poland, in explaininq his vote, noted that com;plioi ty,
meanin9 "'aiding and abetting,'" is distinct from conspiracy (Id.
See E/AC. 2f:jsR.16 at 12). venezuela later successfully proposed to
omit t:he }lunishment of 11'preparatary acts' 11 and ta substitute
"complicitj' 11(Remarks of Mr. Ordonneau of France, E/AC.25/SR.16 at
12; and rel'!larks of Mr. Pe rez 1 Perozo of Venezuela, E/AC.25/SR.17 at
2. The Ven_ezuelan proposal was adopted, E/ AC. 251 SR. 17 at 7, 9) • MT.
Pe're~ Pezr'c,zo of Venezuela explained that "[t]he idea of 'attempt'
~a5 in fact already coveredï if 'complicity' were added it would it
would Jbe s-..:perfluous to mention 1preparatory acts"' (E/AC.25/SR.17
at 2. Jror the distinction between preparatory acts and cmnplicity #
see remarks ~f Mr. Ordonneau of France 1 id. at 3 and of Mr. Pe 'rez
Pero2;0 of ,7enezuela, id. at 4). Mr. Rudzinski of Poland explained
that compUcity meant "aiding,and abetting" 1 (E/AC.25/SR.l6 at 5).~ 08/09/93 16:11 "5'217 244 1478 COLLEGE OF LAW 14:1036

33

The Cc)mmentary to the Ad Hoc Ccinunittee Draft records that:

The Unj_ted States representative stated that in
ëLgreeing ta the i~clusion of "cotnplicity" in this
Jl~rticlt h~, understood i t to re~er to accessoryship
hefore and after the tact and to aiding and abett·ing in
t~he cc·mmission of cri:mes enu:merated in this Article
(E/794 at ,8)'!Z
-_;....
J:n the sixth Committee, a United Kingdom amencùnent modified
the Ad Hoc Committee' s draft of Article III (e) and substituted
"[c)ompliot:r in any act of genocide 11 (A/C. 6/236 amended and adopted
at 3 tJN G~OR ·C. 6 at 259. See remarks of Mr. Pescatore of
Luxembourg, id. at 254-255. See also Belgian amendment, ,,
AJC.6/217}). Mr. Pescatore of Luxembourg noted that complicity
entails "thn. rendering of accessory or secondary aid, or simply of'
facilities, to the perpetrator of an ·offense. Accomplices were
punished on.ly if the cri:me were actually co:m:mitted" (id. at 254).
Mr. Pe·'rez Pero2:o of Venezuela also clarified the meaning of
complicty within the Genocide Convention: "The complicity envisaged
in sub~"'paragr aeph should apply equally to acts carrie.d out
betor1 ·0h~. c:rime was conuni tted and to those performed subsequently,
that :Ls., ta acta assisting the culpri ts to escape the punishment
they deserv,~d 11 (Id. at 209).
'J~h ce:1tral elements of complicity (before the fact) are the
provüdon o:: assistance or encouragement with the intent that such

aid is used to commit a criminal offense. In the Zyklon B case.,
defendant Bruno Tesch was convicted and sentenced to death by a·
Britie;h Mil:Ltary Court for being an accessory to war crimes. Tesch
was c1wner of a firrn which provided Zyklon B Gas to German
concentrati,::m camps such as Auschwitz, where as many as four and
one-hcüf million were kil led. The evidence indicates that Tesch
continued to supply as :much as two tons of gas per month, even
after i:tCquir ing knowledge tha~ the gas was being used for mass
extenllinati·:m (Trial Of Bruno Tesch And Two Others (Case No. 9) 1
LAW R:E:PORTS OF TRIALS OF WAR CRIM!NAl.S 93, 100-102 (1947)) • In
oontri'lSt 1 an AnLerican Court acquitted the executives of I.G. Farben
whom ·they deter:mined reasonably believed that the Zyklon B Gas
which they l!~hipp ted the concentration camps was being employed to
disini:e.ct in:mates and did not realize that the typhus vaccine VJhich
they proviôed was being used in medical experiments on inmate.s
(UnitEi!.d Sta·:.es v. Carl Krauch, VIII TRIALS OF WARCRIMINALS BEFORE
THE NUERNBEH.GMILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW No. 10,
1081, 1168-1972 (1952)) •
l~cces :>rysliability also attaches where an indi vidual assists
anothE~ tl:'-'void apprehension, prosecution or p1,1nishment. This :may
arise in ca~•e sn which government officials fail to fulfill their
duty to int:ervene to halt or to punish criminal activity. In
December 1S'37, Japanese troops entered and conunitted nwnerous
atrocities during the so--called 1Rape of Nanking." Over two hundred
thousand pl~isoners and non-combatants were killed and twenty
thousan.d raped within the firs'l; six weeks of occupation (The Tokyo 16:12 "0"217 244 1478 COLLEGEOF LAW ~037
08/09/93

34

Wa:r Crimes Trial (1948) in l THE LAWOF WAR 1\ DOCUMENTARH YISTORY
1029 (Leon Friedman ed. l972)). Foreign Minister Kiki Hirota
receivE~ dE.portsl of these atroci ties and was assurred by the Wa.r
Ministry that these barbarities would be halted. Nevertheless,
Hirot,a was aware that rape and murder continued unaba.ted for over
a month. Th.e Tokyo- War Crimes Tribunal ruled that 'Hirota was
derelict iu his duty in not insisting before the Cabinét that
immediate actiqn~e taken to bring about the same result. He was
content: to reiy ··on assurances· which he· knew were not being
implemented while hundreds of murde:rs, violations of women, and
other a.trocities were beinq cornmitted daily. His inaction amounted
to criminal neqligenoe 11 (Id. at 1134) •. Japanese War Minister and
Premier Hike.di Tojo was convioted of War Crimes for knowingly and'.
wilfully re::using to take adequate steps to punish those troops wlfo'{.
abused and ll\Urdered Allied prisone:rs during the Bataan Death Mar.oh
and the construction of the :surma-siam .Railway. Despite the high
death rate from malnutrition and other causes in prisoner of war
ca1nps, Premier Tojo took no action to insure that they received
prope1.· care (Id. at 1154...:1155).

I. Individu;ü And State Liability For Genocide

Arti•:.üe IV of the Genocide Convention defines the scope of
liability under the Treaty and provides that "[p]ersons co:mmitting
ga.nocide or any of the other acts enuroerated in article III shall
be punishe.d; whether they are constitutionally responsible rulers,
public offi<~ia olrs private individuals."
A:rticlu V of the secreta.riat's draft provides that "(t)hose
cqmntit.ting genocide shall be punished, be they rulers, public
officia.ls ot private individuals" (E/447 at 7. The col'Olnentary cite~
General AssHmbly Resolution 96(!) of December 11, 1946 which, in
part, provides that ''genocide is a orime under international
law •.• for t::1e com:mission of whicb principals and accomplices-­
whether priuate individuals, public officiais or statesmen ••• are
punishalole" ià. at 35}. ThQ conunentary notes that genocide lnay
result froJn the acts of 11statesmen, officials or individuals."
However, the: qreatest threat arises from goverrunental offioia.ls:

Tte heaviest responsibility is that of statesmen cr
rulers in the broad sense of the word, that is to say,
heads c)f state, ministers and members of legislative
as5;emblies, whose duty it is to abstain from orqanizaing
ger1ocide personally and from provoking it and to prevent
it:s col!Jndssion by others (id. at 35). -

Th.E ~ è::retariat's prov1sl.on was incorporated; with seme
modifi4:::attion, into the Ad Hoc Conunittee Draft. The roost conspicuous
modific:::eLtion was the replacement of the phrase "consti tutionally
responsi.ble rulers" \olith "heaà.s of state" (E/794 at art. V, 9.
Articlé V states that 11[t]hose oo:mmitting genocide or any of the
other ~Lots euumerated in Article lV shall be punished, whether they
are heaëls of state, public off~cials or private ·individualsn). A "a'217244 1478 COLLEGE OF LAW 14038
t> 08/09/93 16:12

(

35

ChinesE~ d.:r·aft providèd "[f)or the commission of genocide,
principals and aocomplices, whëthe.r they are public officials or
privatE inclividu~l sha,l be punishable" (E/AC.25/9 at art. II).
This :proposa!, hbwever, was considered to be overly restrictive.
Mr. M•:~:t ~fzotve Union of Soviet socialist Republics pointed out
that in solHe States that the head of state was not considered a
publie offi,::.ial and that government officials were considered to be
"'servants,." of. tw ~ead of state (E/ AC. 251 SR. l8, at 3) . The c~air
Mr. Martes ,,f the·Un1ted States, noted that the American l?res1dent 1

was conside~ed to be a "head of state." (g/AC.25/SR. 18 at 3). In
the enël, the Ad Hoc Committee amended 11 the Chinese draft so as to
incorpo,rate the term "head of state which had been em.ployed in~·
Article III of the Nuremberg Charter (See E/AC.25/SR.l8 at 2-3. Mr. "
Martos reje,~te tde Soviet proposal that Article V make referenc,!?-,.
to "rulers. ') .
IJ~h Sixth Committee further modified the Ad :Hoc committee's
draft. Artic:le IV sta-tes that 11[p]ersons conunitting genocide or any
of the othEr aots enumerate.d in article III shall be punished,.
whet.her t.hE!Y ~a-r~ e~onst;.itution rsl lnyibie rulers, public
o.fficials o:: private individuals. 11 Mr. Fitzmaurice of the United
Kingdc1m que:t:'ied what intèl:"pret~ thouon. be giv~n to the word
gouve..t·n.ants in Article V of the French version of the Ad Hoc
commit:tee's text. He noted that in the English translation, it
appeared ~s "head of State. 11 Yet, various national constitutions,
acoorded· thE• head of State immunity from legal liability. (3 U.N.
GAOR 'C. 6 a·: 302). 'I'he Swedish representative, Mr. Petren, noted
that 1:.h.eS"tA'edish Constitution provided the King constitutional
iilll11unity frc-m criminal liabili ty and proposed to delete the phrase
''heads 1::lfS1:ate" froln Article IV (Id. a.t 317. Sée A/C.6/247. See
a.lso the ren1arks of Mr. Fitzmaurice of the United Kingdom, id. at
314. A Belgium amendment would have substituted the phrase 1aqents
of the S:tate." See the remarks of Mr. Kaeckenbeeck of Belgium, id.
at 316, 31S. The Netherlands pl:"oposed that the phrase ":responsible
rulers" should be used, AfC.6/253. See the remarks of Mr. Oe Beus
of the Nethelrlands, id. at 318). Mr. Morozov of the Soviet Union
argued. that the Ad Hoc Conunittee' s language already excluded
consti·tutional monarchs, from liability and expressed the fear that
the Sweélish amendment would exclude constitutional rulers as well
as heads: of qovernments and m.inisters from criminal liability. Id.
at 317-318). Others argued that constitutional monarchs should not
be accorded oriminal i:m:munity under the Convention (See the rem.arks

of Mr. :[ng'le's of the Philippines, id. at 340). In the end, the
Sixth ccmu:nittee accepted, without debate, the proposa! of Siam to
substitute i:he1 tern "constitutionally responsible rulers" fo:r
ttheads of State ' (See the remarks of Prince wan Waithayakon .of Siam
and thiS comnittee'S acoeptance Of his proposal; id. at 343. See
also vote on article V (IV of the. Genocide Convention] , id.. at 357-
358. An ~9arlie proposal by Siam to incorpora te the tèrm 111heads of
Cove.rniUents, ~ id. at 341, was not deerued satisfactory. See the
remarks of M~. Fitzmaurice of the United Kingdom, id. at 352. De
facto rulers v.rere considered to fall within the existing text. See
remarke ~f Mr. Spiropoulos of Greece on Syrian proposa!, id. at" 08/(19/93 16:13 'U217 244 1478 COLLEGE OF LAW 14039

(

36

357) .
J~rtich~ IV clearly imposes criminal liability on all
goverr1ment ministers and officials, other than constitutional
tnonarClhs (S1~ reearks of Mr. Sardar Bahadur Khan of Pakistan, id.
at 304) • Tl:is exclus ion 1 as pointed out by Mr. De Beus of The
Netherlands .· is based on the fact that "according to the
consti.tutions of the states concerned, heads of State we.re not
responsible for.·th,e actions of the Government. They could thus not
be held res:;>ons~ for fesuoh actions on the international ·plane,
and it 1;;hould be stated, in so:me way or otheT", that the provisions
11
of art:icle i:Iv] did not apply to constitutional monarchs (Id. at
342) • .
Jl.c·ts of genocide by "organs of the State 11 or state officials
which aJ::"eacting in the ir official capaci ty, of cout."se, are imputed .'
to the ~;tat eSée Draft Articles on State Responsibility, in I.L.C>
Report To G1::Jneral Assembly, u.N. General Asse:mbly, 35th Session,
Supplemênt no. 10, p. 59, U.N. Doc. A/35/10 (1980), reprinted in
I.L.c. Yea.rbook. 1980, vol.. 2, p. 30, U.N. Doc.
A/CN.4/SER.J./1980/Add.1 (pt. 2) 1 art. 5-7). This responsibility, of
course, is Etxplicitly recognized in Article IX and constitutes a

breach 1:>ftl'~ cenventi.on. Mr. Correa of Ecuadort during the Sixth
Commitb~e' sonsideration of Article IV noted that "committing an
act of gene cide •.• in the nalne of a state was a breach of the
convent:i.on .... 11 (3 U.N. GAOR C.6, at 350). Mr. Petren of Sweden
later added that "a state which committed an act of genocide on the
territoJ::y o:: another State after having signed the convention,
woulq ·undoul:tedly be guilty of a violation of the convention" (Id.
at 474). T:1e Oraft Articles on State Responsihility of the
Interna1::iona l Law conunission l:"ecognize that the "serious br:each on
a wide~spréa s<ale of an international obligation of essential
importance fol:" safeguarding the human being, such as those

prohibiting slavery, genocide and apartheid" constitutes an
"inter:natio11al ·delict," and in certain cases, may comprise an
"international crime'' (Draft Articles on state Responsibilit, supra
at art .. 19 Cn, 19 (3) (c), 19 (4). Aid or assistance by a State to
another Stat~ for the commission of an intei:'nationally wrongful act
also coYtsti t:utes an 1internationally wrongful act. 11 Id. at art.
27) •

J. 'l'he Inacinquate Mechanisms For The Adjudication Of Indi vi dual
Liabil.i Affi~my The International court' O.bli~ation To Determine

State lR€~spons 1iitbi Under The Conventib~

lilrticle VI of the Genocide Convention provides for
prosecut:ion before the domestic tribunals of the State "in the
territory of which the act was committed" .as well as for
entoro,antent "by such international penal tribunal, as may have
jurisd:ic:tion with respect to those Contracting Parties which shall
have acceptej its jurisdiction.~
During the debates over Article tv in the Si:xth Corrunittee/ it
was argued th.at there was little likelihood that public officials
would .be pronecuted by the ir own _governrnent and that there was only0 08/09/93 16:14 U217 244 1478 COLLEGE OF LAW ----"l41E4_0_·-

f

37

a rem1ot poessibility that the international community would agree
to creata a~d accept the jurisdiction of an international criminal
court. As a resu~t, it was thought essential to vest jurisdictio;n
in the Ir.ternational court of Justioa to determine state
responsibility fo:r genocide. Such a provi.sion, of course, was later
inoorporated into Article IX (See remarks of Mr. Fitzmaurice of the
United Kingiom, 3 U.N. GAOR at 319, 342 353-354 and United ~ingdom
ame.nd.ment ~/C.6.j2'f?.fCor :ee.la.so the rem~rks of Mr. Correa of
Eouador, J.cl. at; '350; Mr. Abdoh of Iran,· 1d. at 351; and Mr.
Kaecke.nbeecK: ot .Selgium, id. at 341 and Belqium amendment,
AfC. 6/252) •· Mr.. Pescatore of Luxelnhourg added that genocida
frequently l:"esul ted from the actions of an en tire qovernmental
apparat.us and that it was difficult to establish individual
liabi1ity. In such circumstanoes, it was appr:opriate to impos,e .•· ·
llabili ty upon an entire State (See remarks of Mr. Pescatore o'f:··
Luxeml)ourg, id. at 349-350). Mr. Fitzmaurice of the United Kingdom,
notinq the difficulties of enforcing the provisions of Article IV,
obsérved th; tt:

T.he aclvooates of t;ha.t article [present Article IV
c:onc$:raing- the li.ability of. public officials and private
ing .v~::l, .1l Utrtlds from the princip le that an
in1;Eàï:"nù.tional pénal court be set up. There was, however,
no· sui::h court in existence, and were i t to be
es:tà.:Ql:Lshed, it would probably be a long time before it

W~S! wo1·kin9 effectively. Until that time, the provisions
~f>ar~:.c Vle[IV] would be of. no praotical use. But even
wheri the court had been set up, hotN werè rulers to be
arraigneà before it? Governments would certainly not ha:nd
t.hai:r heads of State or their ministers over the court,
and thn idea of an armed force being sent to arrest the
guilty parties was even less conceivable.
In those circumstances, there was only one solution
possible on a realistic basis: provision would have to be
made fer the arraignment of States or Governments before
the In1:ernatio coar~ of Justice (id. at 321) .

Mr. Fitzmauz·ice, later again stressed the need to provide for the
adjudicatior. of State responsibility for genocide hefore the
Interna1:.iom:.l Court:

In the case of a head of State being guilty of genocide,
there ilere two possible hypotheses; either the was a
despot, who would not be punished by his own national
c~ourts ;r he was a ruler who acted only lN'ith the advice
o·f his"""ministers, in which case, as the Government was
tihE r~al culprit, the ruler would not be arraigned hy the
01::>ttrts of his country. Sinoe there was no international
o:d.minal court, the. provisions of article V [IV] were
meaningless as far as heads of State were ooncerned both
oJn. the national and on the international level ...•

•0 08/09/93 16:15 '0'217 244 1478 COLLEGEOF LAW 141041

38

In th ose circwnstances, the only provision that
c:ould be made was to arraign Governments gu il ty of
genocide bef ore the only existing court; the
International court of Justice, 'Which would not pronounce
sentenc::e, but would orà.er the cessation of the imputed
C!Lcts, and the payment of reparations to the viotims (Id.
filt3421 •

The Sixtht fbmmittee, of course, did provide for the
adjudicatio:1 of state responsibility in Article IX (See rejection
of the united Kinqdom amendment to Article IV, id. at 355. For a
legislative history of the United Kingdom's amendments, see remarks
of Mr. Fit:rmaurice 1 id. at 430). The strong support which was
articulated. for the inclusion of the adjudication of State .
responsibil ity bef ore the International Court in .Article IV affirm;J ·",.,.··
the Int:ernational Court' s central role in the enforcement of thÉ{
Genocidle C''nvention. The provisions pertaining ta individual·
crimina~ l:.ability .cle.arly were viewed as a significant, but
··somewhfJI"':!---·-4 metai-~vsem----_..to--- ..a..p..epuninh.-- .the ..
intertla.tio:n,al cr.ime of qettocide. As a result, primary relianoe was
placec:i on the the adj1,1dication of state responsibility before the
internsttional cqurt. Mr. Kaeckenheeck of Belgium noted;

~rll •• [Convention] tried to xnake the best possible use
of èxi:stinq courts, that is, the domestic criminal courts
;:tnd tt.e International Court of Justice. At the moment
'bhere was no international court; there was not even a
d.raft proposa! for the institution of such a court. '!'he
'establishment of a. new international judicial organ
involved so many difficulties that it might be assumed
·that :Lt would be alcmq time before an international
crimi~al court began to function. It was therefore
:necessary to be realiste, and tna.ke suitable use of the
existing organs (Id. at 341).

The vastirq of jurisdiction in the International court to
adjudicate State responsibillty was not merely viewed as a
mechan:lsm :Eor anforcing the Convention. Mr. Correa of Ecuador
stressed th~t the application of sanctions against High Contracting
Parties may serve to deter acts of genocide which posed a threat ·to
internatior.al peace (Id. at 350).

I. Hiqh contractinq Parties Possess An Affirmative Obligation To
Preven~ Anci To Punish Acts Of Genocide
' .
Gener~, l ssembly Resolution 96 (I) invites Membe.r States to
11enac.t the neoessary legislation for the prevention and punishment
of this crime [of genocide]" (See remarks of Sir Hartley Shawcross,
3 UN GAOR élt 47-48).In the thi:rd paragraph of the preamble to the
Secretaria1:'s draft, the High Contracting Parties "pledge
thems.el ves to prevent and to repress such acts [of genocide]
where:v•er th.ey may occur" (E/447 at Preamble, .5). The last two"' 08/09/93 16: 15 '6'217244 1478 COLLEGE OF LAW
~042

39

paraqr·aphs ~'f the preamble to the Ad Hoc Committee' s dra ft also
affirms that 1Being the prevention and punishment of genocide
requil:·es international co-operation ... [The High Contraoting
Parties] HéJ~b agree to prevent anà punish the crime of genocide
as beré.inafter provided" (E/794 at 2 adopted at E/AC.25/SR. 2:3 at 5.
See also id. at 3-4). In the Sixth Comroittee Mr. Sundaram of India,
"recal.led that in the prearnble ••• it was stated that the. High
contr~~cti Pnagr~ijf lagree t~ prevent .and punish' t~e crimt; of
genocj_de. I1:was tnerefore obv1.ous that 1.f a .State comn11.tted cr1.mes
of genocide. after having signed the convention, such an act would
constitute .;\ breach of the convention" (3 UN GAOR C. 6 at 346).
There .Ls little doubt that states possess an affirJD.ative duty
to px·event and to punish the crime of genocide. Ouring the
proceedings of the Sixth committee M~r. Kaéckenbeeck of Belgium ·
reoaiveâ, th':! committee's $Upport for his proposal that the wording ·"
of the fine~l paragraph ot the preamble to the Ad Hoc Conunitteà
dr~:~.f $t01.Lld be inoorporated into Article I of the Genocide
conve11t.ion (Id. at 38. Mr. Kaeckenbeeck illas making reference to the
··-reguirfâment-1:-hat-H-:l;'t;h-G: -e'rl:'àl-t·kel.?a.·.ev~in-n.an:dUPar-ti•s
ta pu;rtlsh" uenocide). This modification of the text was intendeel to
st:rertqt hehenobligation of High Contractj.ng Parties to prevent
and . pU..nish the crime of genocide. Mr. Kaeckenbeeck of Belgium
stÇtteà that thé "Belgian proposal was to substitute for a pùrely
declà.rat·9ry statement a solemn commitment, of practical import, to
pr(ilve:nt:anc. suppr~ss the crime" (Id. at 44). Mr. De Beus of the
Nethe:t"lands argued that a 1formal declaration by all states .could
not bE31ob1:ained by a statement in the premable, and should
therefore l'e embodied in a substantive article" (Remarks of Mr.
sundar_am of India, id. at 46). Mr. Maktos of tne United States
noted that "if a lawyer had to rely on the- preamble .•. he would have
a m.or·e dif::icult task in court than if that statement were laid
down in the~ operative part of the convention 11 (Id. at so. Article
1
I is ' far f'rom superfluous. Remarks of Mr. Dihiqo of Cuba, id. at
41) .. Ac::coràingly, Article I was modifiad to read: "The contracting
Parties oo11firm that genocide 1 whether commited in tirne of peace or
in time of war, is a crime under international law which they
undertake t.o prevent and to punish" (Adopted, id. at 53). The last
parag·r;a.ph of the preamble to the convention reinforces the
oblig·a·t.ion imposed by Article I and proclaims that 1international
co-operation is required" in order 1to liberate mankind" from the
"odic•u·s scourqe" of genocide.
A:rtic:_e V charges the High Contracting Parties with the
affit·mativn obligation to 1undertake to enact, in accordance with
theiz· resp•~cti voenstitutions, the necessary legislation to give
effec:t.- to the provisions of the present Convention and, in
partlcular, to prove. effective penalties for parsons guilty of
qenoc:ide o:: any of the ether acts en1.,1.merated in article III."
_; The S9cretary-General's draft requires the High contracting
Parties to "make provision in their municipal law for acts of
genoc::ide" (E/44 7 at art VI, 8) . The conunentary notes that 1[i] t is
essential ·:hat the Parties to the convention should introduce into
their! crininal law provision.s for the punishment of acts ofD 08/09/93 16:16 "5'217 244 1478 COLLEGE OF LAW 140143

40

genocide as defined by the convention ..... [T]he penalties should be
sufficientJ.y rigorous to make punishment effective" (Id. at 37).
Article VI çf the Ad Hoc Committee Draft elaborates upon this
oblig-a·tion and provides that "[t]he High contracting Parties
undertake ·:o enact the necessary legis.1ation in accordance with
their constitutional procedures to give effect to the provisions of
this Conve:utionn (E/794 at art. VI 1 at 10 1 adopted, E/AC.25/SR.19
at 8) • Mr. Azkpu~ of Lebanon noted that the Genocide. Convention
woulà. be "usel'ess·n if the States Parties· were not obligate.d to
incorpora tH such legislation wi thin their domestic legal codes
(E/AC.25/SH.6 at 12). Mr. Morozov of the Union of Soviet Socialist
Repub,lics ·:l.dded that a failure to require the High Contracting
Parties to promulgate laws for the prevention and punishment of the o
crime: of qenocide would signify a lack of commitment by tl)e,
international community to suppress acts of genocide (Id. at 14)'.·
The languag-e of the Ad Hoc Colillllittee, draft, however, is not
limit.ed to requiring· action in the penal sphere. Mr. Pe 1 rez Perozo.
noted. t:.hat a High Contracting Party' s obligation to combat genocide
may entailtheena-otïiféfft ofedücational measures or a :modification
of extradi·tion procedures {see remarks of Mr. Pe' rez Perozo of
Venezuela,·· E/AC.25/SR.l8 at 14; and of Mr. Azkoul of Lebanon,
E/AC.25fSR.19 at 4).
The Ac. :Hoc Committee dra ft forms the ba sis of Article V of the
Sixth. Cown~.tte draft which was incorporated into the convention.
Artic:le V recognizes that High Contracting Parties are required to
enact both criminal and non-c.riminal measures to combat genocide.
It als.o p:r:ovides, as a concession to ·Federal states, that the
oblig-ation of a High Contracting Party is liro.ited by its
const.ituti(mal procedures and structure (See A/C. 6/215/Rev. 1 at
para. 6, : accepted 3 UN GAOR at 326. See also id. at 361}.
Ne.ve.rthele ii!! i~s clear that within their sphere of com:Petence
that, as Nr. Abdoh of Iran noted, that 11States were under an
obligation to take the legislative measures necessary to ensure the
applicatioll of the provisions of the convention and particularly
measu.res ccncerned with the prevention and suppression of genocide.
The latter measures formed an essential part of the convention"
(Id. <:~. 3t~:5). A Soviet amendment was adapted which e>tplicitly
oblig·ated states to pravide effective penalties for acts of
genoc:üie" (Id. at 322, 324, 326. For State obligations under
Article v, see the remarks of Mr. Kaeckenbeeck, id. at 325).
A:s a carallary to this legislative obligation, the High
Contractinq Parties are required under the language of Article VI
of the Ge:"J.ocide Convention to prosecute persons charged with
genoc:üle before a "competent tribunal of the State in the territory
of which the act was committed, or by such international penal
tribunal as may have jurisdiction with respect to these Contracting
Parties wh:Lch shall have accépted its jurisdiction." Article VII
proyides tt.at genocide and the other acts enumerated in Article III
"shàll not be considered as political crimes for the purpose of
extra.ditiou. 11 The Contl:'acting Parties 11pledge themselves in such
cases .. to ·:rrant extraditon in accordance with their laws and
treat.i.es Ü1 fùl::-oe,)!Q 08/09/93 16:17 '5'217 244 1478 COLLEGE OF LAW
141044

Î

41

Thus, :.n the absence of an international criminal court,
Article VI requires that a State prosecute those over whom it has
jurisdit:~t wihor~.have ooliUilitted acts of genocide within its
terri toJ:-y. Nr. Maktos of the United states, speaking as Chair of
the Adl Hoc Committeé, explained during the deliberations of the
Sixth Conunittee that the text of Article'VI does not restrict the
authori'l:.y of a state to punish their nationals for gel)ocide
commit.ted ilt th~ ~rritory of another State. He went on to stress
that the "only; dbligation imposed an them [High Contracting
Partie:s] by article VII [VI] was to punish crimes of genocide
collllll. ontthtied territory .... 11(3 U.N. GAORat 407. See A/760 at
a, foatnote. See also id. at 6S5). Mr. ·Guerreiro of Brazil observed
that 1!.rtic1H VI was not intended tc solve questions of conflicting
compet:enoe in regard to the trial of parsons charged w ith
genocide .•. :i]ts purpose was merely to establi~ he obligation o;'
the St:ate i:t which an act of genocide was oommitted" (Id. at 7oo.··
Article VI would appear to permit a State to exercise extra­
territorial jurisdiction and to prosecute those who committed
genocid.e agi:t.inst its nationals. See A/C. 6/313 and id. at 691-701).
;U:-ticl :;I:,~ when read in conjunction with Article I, arguably
do es c::reate. an o.bl iÇ{ation on a state to. prose.cute i ts own nationals
for genocide comroitted within the territorial boundaries of other
States. The Sixth Committee explicitly. incorporated a footnote into

its re}~or wthich ·provides that Article IV "does not affect the
right c>f any State to bring to trial bef ore its own tribunals any
of its nat.ionals for acts committed outside the State" (A/760 at
8 1foo·tnqte. See id. at 685-686) .
In contrast to the duty ta prosecute, the Genocide convantion
does ncJt ilrpose an obligation upon States to extradite offenders.
(see :re~mar oks Mr. Fitzmaurice of the United Kingdom, 3 u.N. GAOR
at 331 The "defect" of the Ad Hoc Committee provision was that "it
made extraë.ition too compulsory 11 ld.) . Mr. Kackenbeeck of Belgium
noted that the 'phrase 1in accordance wi th its laws' in the second
paragraph c1f article IX rnade it quite clear that no country would
be obliged to extradite its own nationals, if its laws did not
permit th~rL" {Id. at 332).
n·~ugosùav iSerbia and Montenegro) 1, pursuant to articles I,
V anèl VI, ·chus possesses an indisputable dut y under the Genocide
conve~n·ti toon "undertake to prevent and to punish'' genocide. It is
obliga'ted "to enact ..• the neoessary legislation to give effect-to
the provis.Lons of the present Convention. 11A strict duty also is
impoe;ed on 1Yugoslavia (Serbia and Montenegro)" to prosecute those
withl.n its territorial jurisdiction who are liable as conspirators
and ~tc.cess.:: i~riaets of genocide.. In addition, Articles I and
Articües r.J1 when read in conjunction, arguably create a duty ta
prosewute 'Yugoslavian (Serbia and Montenegro) nationals who have
conunittêd ';}enocide within the territory of othér States. rnstead,
the ru.mp Y'.1goslavia has persistently breached this obligation and
has:' gross·_y flaunted its international obligations under the
Genocide C~nvention.

IV. 'I HE ''FORMER YUGOSLAVIA 11 STRONGLY SUPPORTED THE GENOCIBE~ 08/09/93 16:17 'a'217 244 1478 COLLEGEOF LAW 14045

r·

42

CONVENTION
1
IJ.e "F::~rm Yaugoslavia" strenuously supported and urged the
adoption of a strdng and effective Convention aga.inst Genocide 11 Thi~
stancE! is n1)t surprisinq given that the "former Yugoslavia, "had
suffeJ~e unier acts of genocide" during :world War II (Rema.rks of
Mr. Bnrtos ,;:J"the former Yugoslavia, 113 UN GAOR c. 6 at 228). Mr.
Bartos noted duripq the proceedings of the Sixth Co:mmiteê that
While count::-ies tnwfiich had not been the Victims Of nazi and fascist
atroc1ties could afford to forget the past; those'· who, like [the
former) Yug;:,slayia, had suffered under acts of genocide could not
do so*1 (Id. at 228). He opined thàt n(t]he peoples who bad been
victüns of acts of genocide during the second World war were
anxious abo~e all that such acts should never be repeated" (Id. at
216) . During the openinq session of the Sixth Committee's .•·.
consideration of genocide, Mr. Bartos proolaimed his country'a·
support fot· the Genocide Convention a.ffirmed "the obligation of
signatc>ry States to p:revent and suppress genocide" (Id. at 40 in
·suppor-t'--ef--Be.lq4.Ym-- -ame-mim~-n .incorpo-ta.e the .Qllligation to
prevent: and suppress qenocida in Article I. See remarks of Mr.
Kacke.nbeeck· at 38). He stressed that ratification of the Convention
was pa:ttticularly vital gîven its contemporary relevance:

~he fact that the General Assembly had taken
cog'ni2 ance of the pro:blem of genocide proved that all
c:Lvil.:zed peoples condemned that crime which was unworthy
of moclern oivilization. That crime, however, was still
biaing commmitted ... against ..• peoples f ighting for the ir
freeeè.om. The question was therefore one of 9reat
importance at the present time. It was essential to draw
up .••ë. convention which would constitute a real code of
interr~tiona lw for:bidding genocide in general, not a
t~axt ~rith loopholes ...• (Id. at 9).

Durin~ the Sixth committee debates, "the former Yugoslavia"
suppo,r·ted i:he prohibition on propaganda in support of hatred and
genocide I [T]he first stage of ..• [genocide] .had been the
prepa:r:ation and mobilization of the masses, by mea:ns of theories
disseminatHd through propaqanda •.. 11[t]he first step in the campaign
against genocide would be to prevent incitement to the crime.

states shc.uld be under the obligation to prevent and punish
genocide. Cine way of preventing it was to state that liberty should
be regulat1~ do as to avoid anarchy." Id.· at 216); the punishment
of inc:dtelt.ent to genocide ( By rejecting the provisions ... the
committee uould be putting another and a more powerful weapon into
the lla.nds of the criminals, as the delation of the provision on
incit:ement .. -would be still worse than the absence of any provision
on the subject. 11 Id. at 228) and the criminalization Of
pretmrator:r acts ("The Ad Hoc ColtUtltitee had concentrated chiet'ly on
measures for punishment, but- the peoples of the world demanded that
genocide should never again be committed. The main preoccupation
must the.re~ be rte prevent it; and, to that end, allprep~atory~ 08/09/93 16:18 "6'217 244 1478 COLLEGE OF LAW !4!046

43

acts must be punished .••. History showed beyond doubt that the
punishinènt of preparatory acts was necessary to prevent the
perpetraticn of the crime."Id. 235).
The "former Yuqoslavia" also favored the imposition of a d.uty
upon High Contracting Parties to disband organizations whose
purpose wau to promote hatred and genocide (n [T] he existe:r of~.ce
fascist and nazi organizations •.• had ~ade it possible for the crime
(of qenocide] to, a~ume the monstrous proportions which had shocked
the conscience o'f the world .•.• Govermnents [do not) .•. tolerate the
existence, in their territory of associations which incited to acts
which werEJ crimes in common law, why should •.. [they not]
disband [inç·] organizations whose purpose was the perpetration of
genocide?" Remarks of Mr. Kacijan, id. a.t 466). ..,~·.
The 1former Yugoslavia'' also voted for the explicitz: ..···
recognitio:rL of the principles of the.. Nuremberg Charter in the
Genocide Convention, particularly the abrogation of the superior ,
orders def•ense (Id. at 509) as well as for the inclusion of a
prohibitiorL. on _c;:~_!_ _g~_~ênfoci.d eId. at -206). The "formér
Yuqosravrar·---"fook a bread view of the acts which should be
enumera:teçl as cons.ti tu ting acts of genocide (See propos al to
include :f'o:rcing people from.their homes. "[T)he Nazis had dispersed
a Slav ma: ority fro~ acertain part of Yugoslavia ·in order to
establi~n u German majority there. That action was tantamount to
the del.ibet·ate destruction of a group. Genocide could be committed
by forcing members of a group to abandon their homes." Remarks of
M:r .Ba:i::tqs, id. a.t184-185. See also proposal to include the forced
transfèr ·o1: children with a view to the ir inclusion into a.nother
group. M~r. Bartos voted against the propo.sa 1, but 1was
prèpa.rëd ... ta agree that the forced transfer of individuals with a
view tc) their assimilation into another group constituted cultural
genoc.ide. ' Id. at 191) and supported the inclusion in Article I of
a du1:y upc1n States to take action to prevent and to suppress
genoc:ir.le a:s well as the retention of the language that genocide W'as
an in.terna1~i ormael whether cornmitted "'in time of peace or in
time of wa1.·" (Id. at 40, 50. "Genocide ws explicitly mentioned in
the r1ation•tl legislation of the [for1ner) Yugoslavia, and in the
opinion of his delegation States which ornitted to include genocide
in th.eir lHgislation failed in their duty." Id. at 50).
The nfomer Yugoslavia" abstained from voting in the Sixth
Commi.t·tee on the acceptance of the draft convention on genocide.
This abstention was based on the belief that the draft convention
was not sufficiently strong and that, as result, it would pTove
ineff'ectivn in co~bating genocide (Id. at 701). Mr. Kacijan
regret.ed tbat his delegation had to refuse to vote for a text which
failed to achieve the "real aim of the convention, namely, the
preven·tion of genocide" (Id. at 707). He went on ta state that he
"could not vote in favour of a text which did not give sufficient
guaranbees against any future recurrence of ÇJenocide" (Id. at
708) .~'l 1'former Yugoslavia, however, did vote for the Convention
in the GénHral Assembly (Official Records of The Third Session Of
The GE:m~ra l ssem:bly 1 Part I, Plenary Meetings .of Thé General
Assentbly 8!)1 ( 1948) • 'ô'217 2H 1.478 COLLEGE OF'LAW
141047

Ci'len ·.-he "former Yugoslavia's" firm support for t'he Genocade
convention ·'<Xist:r-ong condemnation of such atrocities, it is tn .b~
expecte•d t.hat. ~~'J:·Ll.go (Slrbiaia and Monte.negro) 11 would welco:me
and support t.:he rt\ternational Court 1s jurisdiction and judgment in
the p~esent case.

1. Ar1ti.cle ilii:twas adopted as an Australian amendment to Article
!X CA/760 at Eî); according to Mr. Fitzmaurice of the United
Kingd·cnn 1 he voted for the Australian amendme.nt in arder to clarify
that the jcint United Kingdom~Belgiu amendment to Al:.~ti IXle did i
not aJi.ticipatè that 1recourse might be had only ta the
Interrüstiol:al Court of Justice, to the exclusion of other competent
organs of the United Nations" {id. at 457).

2, Mr"' Sundaram of India noted that 1the ward rapplication 1
includE~ tde study of circumstances in which the convention should
or sholJ.ld Hot apply, while the word 1fulfilment' referred to the
compliance or non-compliance of a party with the provisions of the
conven1tion. The world 1fulfilment' therefore had a nmc.h \vider
maaning;" 3 U.N. GAOR c. 6 at 437. Mr. Gross the United States
observ1~ t.at "the words 'disputes ... relating to the .. , fulfilrnènt'
refern~d tc1 disputes concerning "the interests of subject:s of the
11
plain.tiff ~!tate (Id. at 704) .

3. Perkim; and Boyce state that it is .tffioient that there. is a
meetin9 of the minds--a unity of design and purpose, A fo1':1Ual
agree~men need not be demonstrated. rt is suff'icient that the
parties taoitly conté to an understanding in regard to the unlawful
purpc•se. snch an understanding may be inferred from 1SUfficiently
signif ica n'~ circumstances. 11Where more th an two are i:nvol ved, i t is
not necessary that each conspirator must know thé identi .;tLL
of the othE:rs. Those who, with knov.rledge of the consptJ:·,~ ~;_,-r:n:
assü~t in carrying out i ts criminal purposes 1 tiJ.B:t t:d)yli'2tk-;·
t.hemselves pa-c."ties thereto and are liable as co-cCJI'lsplrato:t'S.
ROLLIN M. PERKINS & RONALD N. BOYCE, C:RIMINAL LAW 683-684 (:5rd ed.
1982)

4. ThE~ sixth Contmitte did not debate the introductory claüBe ç,f
Article Ili which states that " (t] he follo·'inq acts sl'1all bé:
punishable. 11 HOTJJ'éVer1 Mr. Fitzmau:rice of the Jn.i:t~ Kingdo.m dt$;',"
the Commit teer s attention to the fact that the word punishrt1et1.t
pe.rtai:ned to n indi viduals, as States could not be punishe.ct .n 'i~t.?
he .not.ed tha.t. genooide was customarily cornmitted by State;:.:; ..
Govermnents or by gove:rnment instibiticn::.> and suggested tt~"''
subst.itution of a phrase whic1i would "cover g·enocide perpctrated
States cr Gove:tnmerd:s, as well as genocide committed by pr1vate
individuals 11 (3 U.N. GAOR C.6 at 209. See alec id. at 301).