In the Bosnian Genocide case, Bosnia alleged that the Federal Republic of Yugoslavia (FRY, Serbia) was responsible for, inter alia, committing genocide and failing to prevent genocide on Bosnian territory. This argument, of course, immediately raised the question whether the FRY had any obligations under the Genocide Convention regarding its actions outside its own territory.
To answer this question, it is first necessary to recall that the Court interpreted the Convention so as to contain three distinct sets of obligations of state parties:
(1) The obligation to criminalize the crime of genocide and its ancillary crimes in their domestic law, and to prosecute the perpetrators of these crimes;
(2) The (positive) obligation to prevent genocide;
(3) The (negative) obligation not to commit genocide through their own organs or agents.
This expansive interpretation of the Convention is not uncontroversial. It is entirely possible to read the Convention as solely requiring (1) criminalization, that the (2) obligation to prevent genocide is merely hortatory, and that (3) is found nowhere in the treaty (see, for example, this article by P. Gaeta in the EJIL). For what it’s worth, I am entirely in agreement with the Court. But when do states actually have these various obligations, and is there is a single territorial scope of application of the Convention?
According to the Court, the territorial scope of the Convention varies with the particular set of obligations in question.
The Court established that the state obligation to punish genocide from Article I was specified and in essence exhausted by the other articles of the treaty – Articles II and III defining the punishable offences, Article IV providing that these offenses shall be punished irrespective of the status of the individuals who commit them, Article V obliging states to enact necessary legislation, and Article VI specifying that persons charged with genocide shall be tried ‘by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal’ whose jurisdiction the state concerned had accepted. Plainly, the contracting states obligations under Article VI are ‘subject to an express territorial limit.’ States are only obliged, at least as far as the Convention is concerned, to prosecute the perpetrators of genocide committed in their own territory, not anywhere else:
The Court would first recall that the genocide in Srebrenica, the commission of which it has established above, was not carried out in the Respondent’s territory. It concludes from this that the Respondent cannot be charged with not having tried before its own courts those accused of having participated in the Srebrenica genocide, either as principal perpetrators or as accomplices, or of having committed one of the other acts mentioned in Article III of the Convention in connection with the Srebrenica genocide. Even if Serbian domestic law granted jurisdiction to its criminal courts to try those accused, and even supposing such proceedings were compatible with Serbia’s other international obligations, inter alia its obligation to co-operate with the ICTY, to which the Court will revert below, an obligation to try the perpetrators of the Srebrenica massacre in Serbia’s domestic courts cannot be deduced from Article VI. Article VI only obliges the Contracting Parties to institute and exercise territorial criminal jurisdiction; while it certainly does not prohibit States, with respect to genocide, from conferring jurisdiction on their criminal courts based on criteria other than where the crime was committed which are compatible with international law, in particular the nationality of the accused, it does not oblige them to do so.
(Genocide judgment, para. 442)
The Court did, however, find Serbia in breach of Article VI for not cooperating with the ICTY, which it deemed to an ‘international penal tribunal’ within the meaning of that article whose jurisdiction Serbia has accepted. According to the Court, this particular obligation under Article VI implies that states will arrest persons accused of genocide who are in their territory, even if the crime of which they are accused was committed outside it, and, failing prosecution of these persons in the states’ own courts, that they will hand them over for trial by the competent international tribunal.
When it comes to the state obligations not to commit genocide and to prevent genocide, the Court found that
The substantive obligations arising from Articles I and III are not on their face limited by territory. They apply to a State wherever it may be acting or may be able to act in ways appropriate to meeting the obligations in question.
(Genocide judgment, para. 183)
The state obligation not to commit genocide or any other acts enumerated in Article III through its organs is not limited by any sort of threshold criterion. Whenever an act prohibited by Articles II and III of the Convention committed by an individual would be attributable to a state under the applicable rules of state responsibility, the state would be in breach of the Convention. Thus, the Court examined whether the July 1995 genocide in the Bosnian town of Srebrenica was committed by organs of Serbia or other persons whose acts were attributable to it, and found that Bosnia was unable to furnish sufficient proof to satisfy the applicable tests of attribution. The fact that the genocide was committed outside Serbia’s territory was simply irrelevant for assessing its responsibility under the Convention. (Genocide judgment, paras. 379, 415).
The obligation to prevent genocide is likewise territorially unlimited. It is an obligation of conduct, not of result, an obligation of states to exercise due diligenceand ‘employ all means reasonably available to them, so as to prevent genocide so far as possible.’ The extent of the state’s obligation to prevent genocide depends only on its capacity to influence the actors who are engaged in or preparing the commission of genocide. Thus, the Court found that Serbian authorities were aware of the serious risk of genocide being committed in Srebrenica, that they possessed considerable influence over the Bosnian Serbs forces which committed the genocide, yet that they did not nothing to prevent the massacre. Serbia was accordingly found to be in breach of Article I of the Convention, again regardless of the fact that the genocide took place outside its territory. (Genocide judgment, paras. 430, 438)
When it comes to the obligation to prevent genocide, in his separate opinion Judge Tomka forcefully argued that it should be limited territorially. According to him, ‘under Article I of the Genocide Convention the State does have an obligation to prevent genocide outside its territory to the extent that it exercises jurisdiction outside its territory, or exercises control over certain persons in their activities abroad. This obligation exists in addition to the unequivocal duty to prevent the commission of genocide within its territory.’ As Serbia did not exercise jurisdiction over the Srebrenica area in Bosnia where the genocide was committed, and as it could not be proven that it controlled the perpetrators of the genocide, it could not be held responsible for failing to prevent the genocide.
(Sep. Op. Tomka, paras. 67-68)
In essence, Judge Tomka argued for the imposition of a threshold criterion on the obligation to prevent – state jurisdiction over a territory – which exists, for example, in relation to state obligations under most human rights treaties (on this, see more here). Under his approach, a state would have to exercise effective overall control of an area in which there is a serious risk of genocide being committed by some other actor in order for its obligation to prevent genocide to arise.
Judge Tomka’s approach is certainly more focused than that of the majority of the Court, which basically held that every state in the world has the duty to prevent any act of genocide, no matter where it might occur. One could also say that it is more consonant with the actual practice of states parties, who have hardly shown the inclination to interpret Article I of the Convention as broadly as the Court did.
On the other hand, this approach has no support in the text of the treaty, nor is it based on some more general legal principle, nor, for that matter, can the states parties’ intent to that effect be inferred from the preparatory work to the Convention. As stated by Professor Schabas, ‘while the final Convention has much to say about punishment of genocide, there is little to suggest what prevention of genocide really means. Certainly, nothing in the debates about Article I provides the slightest clue as to the scope of the obligation to prevent.’
It could moreover be argued that states have indeed shown some tendency to read Article I broadly. For example, it is now a matter of historical record that the United States government was reluctant at the time to name the ongoing atrocities in Rwanda as genocide, precisely because that would have implied some legal duty to prevent it. (See W. Schabas, Genocide in International Law, at 72, 405-409; S. Power, A Problem from Hell”: America and the Age of Genocide (New York: Basic Books, 2002), at 358 ff)
The Court’s approach to the territorial scope of the Convention has thus, for better or for worse, proven to be inseparable from its interpretation of the states’ substantive obligations under the treaty. The only truly uncontroversial part of its holding is on the territorially limited scope of the duty to prosecute under Article VI. There is only one question that remains undecided and awaits some future case – whether the obligation to punish genocide is confined solely to those territories over which states have (or claim) title or sovereignty, or whether it also extends to those territories over which they exercise jurisdiction, i.e. effective overall control, either lawfully or unlawfully. Bearing in mind the object and purpose of the Convention, the latter interpretation should be preferred. If we were to transpose the Convention to the time of the Second World War, it would seem positively absurd to state that Germany would have had the obligation to punish acts of genocide committed solely within Germany itself, and that it would not have had such an obligation in respect of Poland or other countries that it had annexed or occupied.
Finally, there is one startling omission in the Court’s analysis of the territorial scope of the Convention – Article XII, the colonial clause:
Any Contracting Party may at any time, by notification addressed to the Secretary-General of the United Nations, extend the application of the present Convention to all or any of the territories for the conduct of whose foreign relations that Contracting Party is responsible.
Colonial clauses give the contracting states the freedom of designating those parts of their territories to which the treaty will apply, thereby avoiding the customary presumption in favour of territorial application to all of the territories of a state party, now codified in Article 29 of the Vienna Convention on the Law of Treaties. That does not mean that they necessarily have an impact on the extraterritorial application of the treaty.
How, then, does Article XII fit in with the Court’s interpretation of the treaty? The only reasonable position would be that it applies solely to those obligations under the Convention which are territorially limited, i.e. to the obligation to prosecute perpetrators of genocide under Article VI. In other words, Article XII allows state parties to specify the territories for which they will later legislate by passing criminal statutes and in which they will enforce these statutes through prosecution. It cannot apply to the state obligations to prevent genocide and not to commit genocide themselves, as that would lead to manifestly absurd results – for example, the United Kingdom would not have been able to escape its obligation to prevent the genocide in Rwanda, but it could choose whether or not to preventgenocide in Jersey or the Channel Islands. (On the interaction between the jurisdiction clause and the colonial clause in the ECHR, see generally L. Moor and AWB Simpson, ‘Ghosts of Colonialism in the European Convention on Human Rights’, 76 BYBIL (2006) 121
Thus, to conclude, in the absence of a firm position in the travaux to the contrary, and in the light of the Convention’s object and purpose, the Court’s fragmented interpretation of the territorial scope of the Convention should be preferred: the obligation to punish genocide is territorially limited and Article XII allows states parties to vary its territorial scope, while the obligations not to commit genocide and to prevent genocide are not territorially limited, but apply in all circumstances. In other words, every state in the world has the duty to prevent genocide, whenever there is a serious risk thereof, and wherever it might happen.
In my next post, I’ll deal with some issues of state succession.