State Responsibility for Genocide - The International Court of Justice's Judgment in the Genocide Case and its Aftermath

Abstract: State responsibility for commission of genocide has a jus cogens status in customary international law and is based on the general rule of attribution: whether the persons or groups acting within the State are acting, or at least can be treated as acting on behalf of the State is key for State responsibility to arise. For non-state actors to be attributable to the State the relationship between them must be one of “complete dependence”, as the test of control formulated in the Nicaragua case of 1986 suggests. The Genocide Convention however does not directly address the question of a State’s liability for committing genocide; Article I obligates States to prevent and punish, but otherwise the Convention focuses on individual criminal responsibility. The Genocide case of 2007 changed this interpretation of the Convention. The ICJ could only use the Convention as a basis for its judgment, not the customary international law, and declared that the obligation to prevent genocide in Article I also necessarily implies the prohibition of the commission of genocide. Nevertheless, the Court ended up not holding Serbia, the respondent in the case, responsible for the commission of genocide in Srebrenica. Instead it found Serbia in violation of its obligation to prevent and punish genocide; a result which could have been the same without the Court’s game changing interpretation of Article I. The ICJ’s judgment in the Genocide case has been heavily criticized, not only for the interpretation of Article I, but also for the high standard of proof of attribution and the choice to use the Nicaragua test as the test of control. It is however important to remember, that the Genocide case was the first case in history where a State was on trial for commission of genocide. Even though the ICJ’s judgment is flawed, possibly deeply so, it can still be seen as a step forward towards greater State responsibility for genocide.