A Courting We Will Go

The Genocide Convention was nearing completion. The crime, the punishable acts, and the perpetrators had all been defined. It was now necessary to establish the entity responsible for prosecuting the crime.

In drafting the articles pertaining to prosecution and jurisdiction the triumvirate of experts took a rather expansive and radical approach. Article VII of the Secretariat draft recognizes universal jurisdiction by requiring states to "punish any offender under this Convention within any territory under their jurisdiction, irrespective of the nationality of the offender or of the place where the offence has been committed." This would mean that states are responsible for prosecuting perpetrators of genocide regardless of where the crime took place or the nationally of the perpetrator.

Article IX committed states to hand over all persons guilty of genocide to an unspecified international court in cases where the state was unwilling to try offenders or if the state had supported the commission of genocide. However it should be noted that Lemkin opposed the inclusion of the first clause. He argued that such cases were of lesser importance. He, rather presciently, voiced his concern about offenders escaping punishment because of the complex process involved in turning over guilty parties to an international court.   Article X was submitted in two drafts. The first gave the International Court of Justice criminal jurisdiction in all matters connected with international crimes. The second provided than an international court be set up to try the crimes of genocide. Lemkin spoke out against an international court, warning that such an action might be premature.

With a little fine tuning the Ad Hoc Committee accepted that a person guilty of genocide would, depending on the circumstances, be tried by either a state or international tribunal. However, the members of the committee rejected the concept of universal jurisdiction. The delegates from France, Poland, the Soviet Union and the United States all argued that not only did due process differ from country to country, but that allowing a country to prosecute a foreign official violated the concept of state sovereignty and the generally accepted principles of international law.  The Committee did agree that an issue over interpretation or application of the Convention should be submitted to the ICJ.

The debate about universal jurisdiction only intensified when it reached the Sixth Committee. Article VI made clear that persons guilty of genocide were to be tried by the country in which the act was committed. If this was not possible then they would be tried by an international tribunal but only if the perpetrator's home country had accepted the tribunal's jurisdiction.

The disparity of views was so great that the drafters saw it necessary to attach a lengthy explanatory note to Article VI in their draft. The note was an attempt to address the two competing viewpoints. The first viewpoint was embodied by India which did not want their nationals prosecuted by other countries. The second group was led by Sweden which wanted to preserve the right to prosecute individuals who committed genocide outside of Swedish territory but against Swedish citizens. As much as the drafters tried to reconcile these desires the general consensus was impossible to accommodate or resolve conflicts between the myriad legal systems of member nations.

Opposition to universal jurisdiction was so staunch that the provision of an international tribunal was initially rejected. It was restored only as an attempt at ensure unanimous support for the Convention. Even then the tribunal was left vague and only ambiguous promises were made to establish this tribunal at an unspecified time in the future.

The Sixth Committee did not have a problem in taking the text of Article IX beyond the Ad Hoc version by giving the ICJ competency over "the responsibility of a State for genocide."

Since the ratification of the Genocide Convention only four cases have been filed before the ICJ under Article IX: Trial of Pakistani Prisoners of War (Pakistan v India) in 1973, The Application of the Genocide Convention Case (Bosnia and Herzegovina v. Serbia and Montenegro) in 1993, Legality of Use of Force Case (Yugoslavia v. NATO members) in 1999 and Croatia v. Serbia in 1999. Of these four a judgment has only be rendered in Bosnia and Herzegovina v. Serbia and Montenegro. In that case the ICJ did not find that Serbia committed, conspired or was complicit in genocide. It did, however, find that Serbia failed to prevent genocide.

It was not until 1993 the first international tribunal responsible for prosecuting crimes of genocide was formed. The ICTY and the ICTR certainly contributed greatly to international criminal law, but the ad hoc tribunals were just that-tied to a specific event in a specific country.  It would take five more years to agree on the formation of a permanent international criminal court and four years after that before the ICC would begin functioning. Much like Lemkin predicted debate has raged on about the court's high-profile indictment of the president of Sudan, Omar al-Bashir.

Universal jurisdiction remains a controversial topic. Some countries, such as Canada, France, Australia, and most famously, Spain have incorporated universal jurisdiction into their domestic law. Earlier this week a Spanish judge took steps toward prosecuting Chinese officials for genocide. But universal jurisdiction remains far from an international norm. The ICJ even disagrees over the extent of the principle. Some judges claim it applies only to piracy whereas others took a broader approach. One thing is for certain-it will be some time before criminals will be able to travel without impunity.

[Photo from Wikimedia Commons: Palace of Justice in Brussels, Belgium.]