Abstract

The International Court of Justice (ICJ) gave a comprehensive meaning to the commitment to avert genocide, which is established in Article I of the Genocide Convention, in the Genocide case. According to the Court, this commitment is operational and Non-Preambular in comparison to the other responsibilities enshrined in the Convention. Furthermore, it would imply that nations have a responsibility to refrain from committing genocide. This latter conclusion is less than persuasive since it contradicts the Convention's historic roots and arises from an understanding that, rather than explaining the meaning of a treaty provision, it infers a new responsibility from it. According to the study, violations of the same primary norm do not establish criminal culpability of individuals or state liability for genocide under international law. The alternative perspective is neither supported by state practice nor international case law: although genocide can be committed irrespective of the presence of a state genocidal policy, the state's international accountability necessitates the presence of such a policy. There is also no need to demonstrate that the state as a whole, or one or several of its officials, had genocidal intentions in the criminal sense for the state's inter-national duty to develop. The Court's decision is founded on the idea that a state's global accountability for genocide implies the responsibility of an individual working on the state's behalf. This method is flawed because, in a criminal matter, the presumption of innocent empowers criminal courts to convince themselves that an individual committed a crime. The Court may have limited itself to interpreting Article 1's commitment to avoid and prosecute genocide as having an autonomous element and finding, as it did, that Serbia had breached both of them. It didn't have to embark on a design of the Convention that was significantly hampered by a misunderstanding of the distinction between genocide as an internationally unlawful act of state and genocide as a crime with individual criminal responsibility.

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