Reining in Non-State Actors: State Responsibility and Attribution in Cases of Genocide

Berglind Halldórsdóttir Birkland

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In 2007, the International Court of Justice (ICJ) defined the scope of state responsibility under the Genocide Convention for the first time when it reached the merits in the Genocide Case,1 a case arising from the violent breakup of the former Yugoslavia. The opinion immediately spurred extensive academic commentary, much of which was critical of the Court’s ultimate holding that Serbia had not committed genocide despite its well-documented role in the Srebrenica massacre.

This Editorial argues that while the Court’s analysis in the Genocide Case is vulnerable to normative criticism for its practical result, it was nonetheless an important victory in the movement toward greater state accountability for genocide. Although the ICJ imposed unnecessarily strict evidentiary hurdles for finding states responsible for the direct commission of genocide, it simultaneously imposed a clear duty on states to rein in non-state actors over whom they exercise influence, by interpreting their obligation to prevent genocide broadly.


I.
States’ Obligations Under the Genocide Convention

While the prohibition against genocide is undisputedly considered a peremptory norm of international law, the precise scope of states’ obligations under the Genocide Convention is contested. As the Convention’s full title—“Convention on the Prevention and Punishment of the Crime of Genocide”—suggests, it clearly obligates signatories to prevent individuals from perpetrating genocide within their borders and to punish any perpetrators they fail to prevent. A significant point of contention, however, has been whether the Convention also imposes an affirmative obligation upon states to refrain from engaging in genocide themselves, and if so, what the scope of that obligation is.

The language of the Genocide Convention does not provide clear guidance on the scope of states’ obligations, and the Convention’s travaux préparatoires suggest that the drafters never actually reached a consensus on the scope of state responsibility. This indecision stems from the tension between the desire to outlaw genocide on the one hand, and states’ reluctance to expose themselves to liability on the other.

In the Genocide Case, the ICJ conclusively held that the Genocide Convention imposes an affirmative obligation upon states not to commit genocide themselves, and in so doing it took an important step in favor of state responsibility. However, the Court’s strict standard for attribution, combined with its onerous evidentiary requirements and high standard of proof, simultaneously made imposition of state responsibility for the direct commission of genocide virtually impossible, including in the Genocide Case itself.


II.
Reining in Non-State Actors

Notwithstanding the criticisms described above, the ICJ’s opinion in the Genocide Case is a significant, albeit incomplete, victory for state responsibility. In fact, the majority’s opinion may be about as radical as the Court could manage considering the jurisdictional and pragmatic constraints under which it operates. While the Court declined to hold Serbia responsible for the direct commission of genocide, it nonetheless held that Serbia had violated its obligation to prevent genocide, because it “was in a position of influence over the Bosnian Serbs who devised and implemented the genocide.”2 States, the Court explained, are under an obligation to prevent genocide, “so far as within their power,” with respect to all “persons over whom they have a certain influence,” and states will be liable for failure to prevent genocide whenever they are “aware, or should normally have been aware, of the serious danger that acts of genocide would be committed.”
3

Although prevention and commission must not be equated, the ICJ’s holding is significant inasmuch as it imposes an obligation upon states to prevent non-state actors over whom they have “influence” from committing genocide. Thus, while the Court concluded that there was insufficient evidence that Serbia had “effective control” over the Bosnian Serb forces for the purposes of direct liability for the commission of genocide, it found that Serbia was liable for failure to prevent the genocide by virtue of its ability to influence the perpetrators.

In contrast to direct commission, the test for prevention does not contain an element of attribution. Instead, the ICJ asks whether the state has “the capacity to influence effectively the action of persons likely to commit, or already committing, genocide.”4 In other words, the emphasis is on ability to influence rather than actual control. This test brings within the scope of state responsibility not only de jure and de facto organs, but also any individual or group that the state could, conceivably, rein in.

The Court’s analysis has implications beyond the Court itself since states’ obligations under the Genocide Convention may be enforced extrajudicially in at least two ways. First, Article VIII of the Convention permits Member States to call upon the United Nations to take “appropriate” action for “the prevention and suppression of acts of genocide.”5 Second, outside the framework explicitly provided for in the Genocide Convention, the prohibition against genocide, as a peremptory norm, may be enforced through the informal system of state responsibility under international law. Violations of the prohibition against genocide, as a peremptory norm, impose an obligation on other (unrelated) states to take affirmative action to stop the genocide. In this context, the ICJ’s redefinition of the obligation to prevent genocide becomes particularly significant.


Conclusion

Although the International Court of Justice clearly stated in the Genocide Case that its judgment was by no means an acquittal, this is precisely how it was read in both Serbia and Bosnia, and as such, it sent an unfortunate message to the masses in both states. However, its ultimate finding as to Serbia’s lack of direct responsibility should not obscure the important progressive doctrinal moves it made within its restrictive jurisdictional and pragmatic confines.

The majority’s opinion succeeded in striking a fairly even balance by declining to hold Serbia responsible for direct commission of genocide while simultaneously expanding the scope of state responsibility under the Genocide Convention. In interpreting the Genocide Convention to impose an affirmative obligation on states not to commit genocide and to prevent acts of genocide by non-state actors over whom the state exercises “influence,” the Court made an important contribution to building an international legal regime for preventing and halting genocide. Although enforcement of these obligations through the system of state responsibility will depend on existing political will, the Court’s expansive view of states’ obligations under the Genocide Convention is of great significance, not merely as a warning to potential perpetrators and their supporters, but also as an invitation to the states standing on the sidelines to take more aggressive action to prevent and halt genocide committed by others.

Acknowledgments:

Copyright © 2010 New York University Law Review.

Berglind Halldórsdóttir Birkland. J.D., 2009, New York University School of Law; B.A., 2006, University of Minnesota. Dedicated to the memory of Professor Thomas Franck. Thanks to the New York University Law Review, Margarita O’Donnell, Munia Jabbar, Rebecca Talbott, Drew Johnson-Skinner, Benjamin Stoll, Lawrence Fleischer, Michael Reveal, and my dear husband Adib Birkland.

This Legal Workshop Editorial is based on the following Student Note: Reining in Non-State Actors: State Responsibility and Attribution in Cases of Genocide, 84 N.Y.U. L. REV. 1623 (2009).

  1. Application of Convention on Prevention and Punishment of Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.) (Judgment of Feb. 26, 2007) {hereinafter Genocide Case}, available at http://www.icj-cij.org/docket/files/91/13685.pdf.
  2. Genocide Case, supra note 1, ¶ 434.
  3. Id. ¶ 432.
  4. Id. ¶ 430.
  5. Convention on the Prevention and Punishment of the Crime of Genocide, art. VIII, Dec. 9, 1948, 102 Stat. 3045, 78 U.N.T.S. 277.

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