A Case of Liable

by Karl Horberg

category: Peace & Justice

Published November 06, 2009 @ 02:44PM PT

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So far the drafters of the Genocide Convention had established a definition and punishable acts. The next step was to clearly establish who could be held liable for genocide.

The Secretariat draft placed criminal liability for genocide on "rulers, public officials, and private individuals." In their commentary the experts stressed that the greatest responsibility for genocide prevention lies with rulers or statesmen. They also took the position that international law should concern itself with prosecuting "rulers" and that states should be in charge of prosecuting lesser public officials.

In a nod to the famed "Nuremberg defense" the Secretariat draft also prohibited "command of law or superior orders" as a justification of genocide. However, it did acknowledge that in some cases command of law or superior orders may constitute extenuating circumstances. This question would be left to the judge.

The Ad Hoc Committee unanimously voted to impose criminal liability on "heads of State, public officials or private individuals." Interestingly a Soviet proposal to include a prohibition of the Nuremberg defense was rejected. Other committee members explained that an in accordance with the definition of genocide an individual could not be held liable unless they possessed the requisite intent and orders were not sufficient to meet this requirement.

The Sixth Committee adopted the language of the Ad Hoc Committee, but substituted the phrase "constitutionally responsible rulers" for "heads of State." The reasoning behind this change was that some countries recognized immunity for constitutional monarchs from domestic and international liability.

The UK delegate proposed an amendment to extend criminal liability to "States, governments or organs or authorities of the State." The delegate pointed out that genocide was usually committed by agents acting on behalf of states and these states would probably be hesitant to punish their own agents or turn them over to international tribunals then it was necessary to include state responsibility for genocide. This amendment was soundly defeated. In an era where state sovereignty was unquestionable many countries did not yet recognize criminal liability of states under international law.

Undeterred by the failure of their previous attempt the Soviet delegation again tried to include an amendment that would prohibit command of law or superior orders as justification for genocide.  It was again rejected on the grounds that individuals must possess intent to commit genocide. A slightly less appealing argument was made that making superior orders indefensible may lead to subordinates questioning the orders of their superiors.

Besides the definition of genocide, criminal liability is the portion of the Genocide Convention that has perhaps gone through the most significant evolution. Former or current heads of state are of course not immune to prosecution. The indictments of Charles Taylor, Slobodan Milosevic and Omar al-Bashir makes this clear. However, as discussed in a previous post, the ad hoc tribunals have largely rejected the drafters' contention that an individual need to possess intent to be complicit in genocide. The ICTY has gone as far to rule that a superior commander can be responsible for atrocities of his subordinates as long as he "had reason to know" crimes were being committed and did nothing to stop it.

The International Court of Justice addressed the question of state liability in the case of Bosnia and Herzegovina v. Serbia and Montenegro. In an opinion regarding provisional measures one judge insisted that a narrow interpretation of liability, which holds that the Convention relates only to individual responsibility, must be rejected.  In its final judgment the full Court seemed to accept this notion of state accountability when it voted twelve to three in finding that Yugoslavia violated its obligation to prevent genocide.

All of our ducks are nearly lined up. Now we know who can be liable, but we need someone who will hold these perpetrators to account. Next time we will take a look at the one judicial body given jurisdiction over the Genocide Convention.

[Photo: At work on the Court Room at the Nuremberg War Crimes Trials, by Alexander, Charles, Office of the United States Chief of Counsel.]