State responsibility and the crime of genocide under the aggravated regime of responsibility of the Articles of Responsibility of States for Internationally Wrongful Acts

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1 Liane Chancerelle 10636447

State responsibility and the crime of

genocide under the aggravated regime of

responsibility of the Articles of

Responsibility of States for Internationally

Wrongful Acts

Master International and European Law: Public International Law

Amsterdam Law School

July 2015

Liane Chancerelle

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2 Liane Chancerelle 10636447 Table of Contents:

Abbreviations ... 4

I. Introduction ... 5

II. The individual state and Article 40 ... 9

A. Peremptory norms... 9

B. Serious breaches attributable to the state ...13

A serious breach constituted by an action or an omission: ...14

An action: ...14

An omission: ...15

Attribution of responsibility: ...17

III. Third states and Article 48 ...20

A. Article 48(1)(b) ...20

B. Article 48(2) ...21

C. Article 48(3) ...22

IV. The international community and Article 41 ...24

A. Article 41(1): Obligation to bring the breach to an end ...24

Obligation of cooperation to bring the breach to an end in international law: ...24

Application of the obligation of cooperation of Article 41(1) to the prohibition of genocide: ...26

B. Article 41(2): Obligations of non-recognition and non-assistance ...29

Obligations of non-recognition and non-assistance in international law: ...29

Application of the obligations of non-recognition and non-assistance of Article 41(2) to the prohibition of genocide: ...30

C. Article 41(3) ...31

Content of the responsibility of the state: ...31

Further consequences for serious reaches of peremptory norms under international law: ...33

V. Conclusion ...34

Bibliography: ...36

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Books: ...37

International documents: ...37

Jurisprudence: ...39

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Abbreviations

ARSIWA: Articles on Responsibility of States for Internationally Wrongful Acts ICC: International Criminal Court

ICJ: International Court of Justice ILC: International Law Commission

IMT: International Military Tribunal sitting at Nuremberg PCIJ: Permanent Court of International Justice

UN Charter: Charter of the United Nations UNGA: United Nations General Assembly UNSC: United Nations Security Council

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I. Introduction

In 2001, the International Law Commission (hereinafter cited as the ILC) adopted the Articles on Responsibility of States for Internationally Wrongful Acts (hereinafter the ARSIWA)1. The ARSIWA were ultimately annexed in 2002 by the General Assembly of the United Nations (hereinafter cited as the UN General Assembly) to its resolution 56/832 and brought to the attention of the member states governments with a view of adopting an international convention on the issue of state responsibility. The ARSIWA are not as such binding upon states, however many articles represent customary rules of international law concerning state responsibility for international wrongful acts3. States are therefore bound to respect them.

Certain parts of the ARSIWA go beyond mere codification and constitute progressive development of international law4. This is the case for Article 41(1) in Chapter III of Part Two of the ARSIWA, named Serious Breaches of Obligations under Peremptory Norms of General International Law5. Articles 40 and 41 foresee an aggravated regime of responsibility for serious breaches of peremptory norms of general international law with positive and negative obligations upon states. This is also the case for Article 48 which provides for the possibility of states other than the injured ones to invoke the responsibility of the wrongdoers in the case of breaches of erga omnes obligations.

The question considered in this paper is the following: What form does the aggravated regime of responsibility enshrined in Chapter III of Part II of the ARSIWA take in its application to the prohibition of genocide?

The responsibility regime developed by the ILC is a set of secondary norms based on the principle that ‘every international wrongful act of a state entails the international responsibility

1_{International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts,}

November 2001, Supplement No. 10 UN Doc A/56/10.

2

UNGA Res 56/83 (28 January 2002) UN Doc A/Res/56/83.

3_{ILC Commentary on the Draft Articles on Responsibility of States for Internationally Wrongful Acts, ILC Report}

A/56/10, 2001, Commentary on General Commentaries, para. 1.

4_{ILC Commentary on General Commentaries, para. 1.} 5_{ILC Commentary on Art. 41, para. 3;}

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of that state’6. This means that state responsibility can only be triggered by the breach of a primary norm. The ARSIWA only deal with the legal consequences of the breach and do not modify in form or in substance the primary norm violated7. This is linked to the fundamental objective of state responsibility which is the restoration of the situation that existed ante the commission of the wrongful act8.

The aggravated regime contained in Chapter III of Part II of the ARSIWA focuses on peremptory norms, also called jus cogens. As defined in Article 53 of the Vienna Convention on the Law of Treaties9, ‘a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’. Thereby, jus cogens norms benefit from the higher rank on the hierarchy of international norms10, and they gain this status because of the recognition of their importance by the international community, not because of the process through which they were accepted11. According to the ILC, the international community is constituted by all states in the world12. Nonetheless, a norm of jus cogens does not necessitate “unanimous recognition by all the members” of the international community to reach this rank. What is requested is only the acceptance of the importance of the norm by all the essential components of the international community that can be understood as a representation of the

6_{Art. 1 ARSIWA ; ILC Commentaries on Art. 1 ; Factory at Chorzów (Germany v Poland) Jurisdiction, Judgment}

No. 8, 1927, P.C.I.J., Series A, No. 9, p. 21; and ibid., Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, p. 29.

7

J. Crawford, The International Law Commission’s Articles on Responsibility of States for Internationally

Wrongful Acts, AJIL, Vol. 96, No. 4, 2002, p.876 ; Ago, Second Report on State Responsibility, [1970] 2 Y.B.

Int'l L. Comm'n 177, 306, UN Doc. A/CN.4/SER.A/1970/Add. 1

8_{A. Nollkaemper, Concurrence between Individual Responsibility and State Responsibility in International Law, 52}

Int'l & Comp. L.Q. 615 2003, p. 626.

9_{Art. 53 Vienna Convention on the Law of Treaties (22 May 1969) 1155 UNTS 331}

10 _C. _Bassiouni, _{International} _{Crimes: Jus Cogens and Obligatio Erga Omnes, 59 Law}

and Contemporary Problems 63-74 (1996), p. 67 ; P. Weil, Towards Normative Relativity in International Law, 77 AJIL 413 1983, p. 423.

11_{P. Weil, Towards Normative Relativity in International Law, 77 AJIL 413 1983, p. 425 ; Reports of the}

International Law Commission on the second part of its 17th session and on its 18th session, [1966] 2 Y.B. INT'L L. COMM'N 169, 248, UN Doc. A/CN.4/SER.A/1966/Add. 1, Commentary (2) to Art. 50.

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will of the international community13. One can question what the essential components of the international community are, however that is not the topic of this paper.

Peremptory norms are owed to the international community as a whole14, thereby they constitute

erga omnes obligations, from the Latin ‘towards all’. They do not depend on the existence of a

bilateral or multilateral relation between state parties to an international treaty15. The relation between jus cogens and erga omnes obligations is not reciprocal; all erga omnes obligations do not necessarily constitute jus cogens16.

The Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter cited as the Genocide Convention)17, adopted in 1946, defines genocide18 as the commission of a prohibited act with the intention to destroy, in whole or in part, a national, ethnical, racial or religious group. Hence, the application of this article necessitates the concurrence of a moral element19, the intention to destroy a group distinct from its nationality, ethnicity, race or religion, and a physical element20, the crimes described in Article II of the Genocide Convention. Those prohibited acts are killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group, forcibly transferring children of the group to another group21.

13_{Report of the International Law Commission on the work of its 28th session, pt. 2, at 1, 97, 102, UN Doc.}

A/CN.4/SER.A/1976/Add.1 (pt. 2), commentary (61) to article 19.

14

Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (New Application: 1962) Judgment, I.C.J. Reports 197, para. 33.

15_{P. Klein, Responsibility for serious breaches of peremptory norms, EJIL (2002) 13 (5), p.1242}

16_{ILC Commentary on Chapter III Part II, para. 7; Bassiouni, International Crimes: Jus Cogens and Obligatio Erga} Omnes, 59 Law and Contemporary Problems 63-74 (1996), p. 63.

17_{Convention on the Prevention and Punishment of the Crime of Genocide (9 December 1948) 78 UNTS 277} 18_{The word ‘genocide comes from the Greek prefix ‘genos’ for tribe, race, and the Latin suffix ‘cide’ for killings. It}

was first used by Raphael Lemkin, a Polish Jewish lawyer. See [http://www.unhcr.org]

19

The men rea, from the Latin ‘guilty mind’. See Prosecutor v Kristic (Trial Chamber) Case No IT-98-33-T (02 August 2001) (Judgment), para. 544.

20_{The actus reus, from the Latin ‘guilty act’. See Prosecutor v Kristic (Trial Chamber) Case No IT-98-33-T (02}

August 2001) (Judgment), para. 543.

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The first section of this paper analyses the prohibition of genocide in light of Article 40 and its requirements, namely a peremptory norm and a serious breach. Does the prohibition of genocide constitute a peremptory norm of general international law? Can the act or omission of the state in the context of such crime amount to a serious breach in the sense of Article 40?

The second part explores the possibility for third states to invoke the responsibility of the wrongdoing state for its breach of the erga omnes prohibition of the crime of genocide. This capacity of third states will be considered and put in relation with the procedural requirement of the responsibility regime.

The third section interprets the obligation of the international community to react to serious breaches of peremptory norms enshrined in Article 41 of the ARSIWA in relation to genocide. The positive obligation to cooperate and the duties not to recognize and not to render aid or assistance are already present in international law. Whether or not those obligations are practically applicable in the context of genocide will be discussed.

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II. The individual state and Article 40

According to article 40 of the ARSIWA22, the application of the aggravated regime is triggered by a serious breach of a peremptory norm of general international law. To be considered as serious, the breach must involve a systematic or gross failure by the state to fulfill its international obligation.

Therefore, one must ask whether the prohibition of genocide constitutes a peremptory norm of international law and whether the action or omission of the state in the context of such a crime can amount to a serious breach of an obligation arising from a peremptory norm in the sense of Article 40.

A. Peremptory norms

Whether flowing from conventional or customary international law23, the prohibition of the crime of genocide constitutes a peremptory norm of general international law that cannot be derogated from24. The number of states that have ratified international human rights treaties and the approach of international courts or the international society at large underline this principle One year after the end of the Second World War, the Genocide Convention was adopted. Today, the Convention is binding upon 146 states of the international community. In the Preamble, the nature of genocide is specified as a crime under international law, contrary to the spirit of the Charter of the United Nations25 (hereinafter cited as the UN Charter) and condemned by the civilized world26. The Genocide Convention states in its very first article that derogation is not permitted neither in time of peace nor in time of war, and that states undertake to prevent and punish the crime of genocide27.

22_{As the article represents the basis for this paper, it is reproduced here: “1. This chapter applies to the international}

responsibility which is entailed by a serious breach by a State of an obligation arising under a peremptory norm of general international law. 2. A breach of such an obligation is serious if it involves a gross or systematic failure by the responsible State to fulfil the obligation.”

23

UN Secretary General’s Report on the establishment of the ICTY, 3 May 1993, S/25704.

24_{ILC Commentary on Art. 26, para. 4.}

25_{Charter of the United Nations, 24 October 1945, 1 UNTS XVI} 26_{Preamble of the Genocide Convention, para. 1.}

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Additionally, Article 6(3) of the International Covenant on Civil and Political Rights on the right to life includes a reference to this concern28. It is specified that if the violation of the right to life constitutes genocide, this article requires the application of the Genocide Convention and the obligations it contains.

The peremptory character of the prohibition of genocide was also stressed by the International Court of Justice (hereinafter referred as the ICJ or the Court) in its Advisory Opinion on the

Reservations to the Convention on Prevention and Punishment of the Crime of Genocide

(hereinafter the Reservations to the Genocide Convention case) in 195129, and later in 2007 in its judgment on the Application of the Convention on the Prevention and Punishment of the Crime

of Genocide (hereinafter cited as the Application of the Genocide Convention case)30. In this respect, the Trial before the International Military Tribunal in Nuremberg of 1946 is of crucial importance, as it represents the absolute condemnation of the genocide that took place during the Second World War31. The establishment by the United Nations of the International Criminal Tribunal for Former Republic of Yugoslavia32, the International Criminal Tribunal for Rwanda33 and the International Criminal Court (hereinafter referred as the ICC)34 also emphasize international community’s acceptance of the prohibition of genocide as a norm of jus cogens. According to Article 26 of the ARSIWA, no circumstances precluding wrongfulness can be advanced concerning breaches of obligations arising from peremptory norms of international law to excuse the violation of the prohibition of genocide35.

28_{Art. 6(2) and Art. 6(3) ICCPR.}

29_{Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion}

(1951) ICJ Report 1951, p.15.

30_{Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and} Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, p.43; see also Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and

Admissibility, ICJ Reports 2006, 6, para. 64.

31_{IMT, judgment of 1 October 1946, in The Trial of German Major War Criminals. Proceedings of the International}

Military Tribunal sitting at Nuremberg, Germany, Part 22 (22nd August ,1946 to 1st October, 1946).

32

UNSC Res 827 (25 May 1993) UN Doc S/RES/827.

33

UNSC Res 955 (8 November 1994) UN Doc S/RES/955.

34_{Art. 5 Rome Statute of the International Criminal Court.}

35_{ILC Commentary on Art. 26, para. 4; As the ICJ noted in its decision in the case concerning the Application of} the Genocide Convention, “in no case could one breach of the Convention serve as an excuse for another”

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Here, a distinction must be acknowledged. In international human rights law, states have the obligation to respect, protect and fulfill human rights36. Applying this typology to the prohibition of genocide, it means that the first obligation upon states is to respect the rights of members of a group distinct by its nationality, race, ethnicity or religion not to be victims of genocide. This is an obligation of abstention37 which implies that the state should not commit genocide, and is breached as soon as a state commits the acts prohibited by the Genocide Convention with the intent of destroying in part or in whole the targeted group.

The second obligation of the state is to protect individuals from genocide. This implies the obligation to undertake all necessary steps in order to prevent38 the crime from happening. This is a positive obligation, requesting a formal action by the state to take measures to protect the group targeted and to punish the individuals responsible for genocide or for any acts prohibited under article III of the Genocide Convention. This is an obligation of means and not of result, where the state is required to take all appropriate steps in order to prevent the to-be perpetrators of the genocide from carrying out killings or others prohibited crimes, and to punish the responsible actors39. Under article 14(1) of the ARSIWA, the obligation to prevent a given event is understood as applicable only when the event has actually occurred. This may seem at odds with the purpose of the rule to actually stop the event from occurring40.

A basic illustration of appropriate measures in this context is the implementation in national systems of laws holding criminally responsible the individuals who have committed –or plan to commit- genocide.

This obligation of protection may be linked to the doctrine of responsibility to protect, as understood by the United Nations. According to this doctrine, states have the primary duty to protect their own population, a duty which is attached to the idea of the sovereignty of the state

36_{F. Mégret, ‘Nature of Obligations’ in Moeckli and others, International Human Rights Law, Oxford University}

Press, Oxford 2010) p. 130.

37_{R. P. Mazzeschi, ‘Responsabilité de l’Etat pour Violation des Obligations Positives Relatives aux Droits de}

l’Homme’ (2008) 333 Recueil des Cours de l’Académie de Droit International , p. 187 ; P. Reuter, Droit

international public (6th edition, Presses Universitaires de France, Paris 1983), p. 253. 38

Art. I Genocide Convention.

39_{Application of the Genocide Convention case, Judgment, para. 430.}

40_{E. Ruvebana, M. Brus, Before It’s Too Late: Preventing Genocide by Holding the Territorial State Responsible} for Not Taking Preventive Action, (January 22, 2015). Available at [http://dx.doi.org/10.2139/ssrn.2554334]

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as a responsibility41. When states fail to protect their population, Hhe international community has the secondary responsibility to act to prevent the crimes and to react in a ‘timely and decisive manner’42.

The last aspect of the prohibition of genocide is the obligation to fulfill the rights of the members of groups distinct from their nationality, race, ethnicity or religion not to be targeted for genocidal purposes. Hence, the state must be proactive in providing a legal environment which protects the rights of the groups distinct on the basis of their nationality, race, ethnicity or religion. This necessarily goes through the implementation of a national legislation criminalizing the commission of genocide and the other acts prohibited under article III of the Genocide Convention, but in many cases this will not be sufficient.

In the widely debated Application of the Genocide Convention case43, the ICJ inferred the negative obligation of states not to commit genocide from Article I of the Genocide Convention on the obligation of states to prevent and punish genocide44. This was criticized by Judge Tomka in his separate opinion to the decision on the Application of the Genocide Convention case45, for whom the obligation upon states not to commit genocide cannot be deduced from the obligation to prevent and punish genocide. Following his interpretation based on the traditional rules on treaty interpretation46, the Genocide Convention only foresees individual criminal responsibility, and thus Article I does not imply any state criminal responsibility47.

The ICJ maintained its interpretation that the Genocide Convention does not suggest the criminal responsibility of states48, and that it would not be reasonable to introduce an obligation

41_{Report of the International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect’}

(International Development Research Centre, 2009) p. XI available at [responsibilitytoprotect.org].

42

Report of the UN Secretary General, ‘Implementing the Responsibility to Protect’ (2009) UN Doc A/63/677 ; World Summit Outcome, UNGA Res (2005) UN Doc A/RES/60/1, para. 138-140.

43_{A. Cassese, On the Use of Criminal Law Notions in Determining State Responsibility for Genocide, 5 J. Int'l}

Crim. Just. 875 2007 ; P. Gaeta, On What Conditions Can a State Be Held Responsible for Genocide?, EJIL (2007), Vol. 18 No. 4, p. 631−648 ; A. Gattini, Breach of the Obligation to Prevent and Reparation Thereof in the ICJ’s

Genocide Judgment, EJIL (2007), Vol. 18 No. 4, p. 695−713.

44_{Application of the Genocide Convention case, Judgment, para. 166-169.} 45

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007 Separate opinion of Judge Tomka.

46_{Application of the Genocide Convention case, Separate opinion of Judge Tomka, para. 37 ; Art. 31 to Art. 33}

Vienna Convention on the Law of Treaty.

47_{Application of the Genocide Convention case, Separate opinion of Judge Tomka, para. 40-44.} 48_{Application of the Genocide Convention case, Judgment, para.170.}

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to prevent and punish genocide committed by others but not to be bound by the same obligation49. Moreover, the Court relied on Article IX of the Convention50 where the contracting parties have accepted the jurisdiction of the ICJ for ‘disputes relating to the responsibility of a state for genocide and for other acts enumerated in article III’51. Accordingly, state responsibility is automatically triggered by the actions and omissions of organs or the state, or of persons whose acts are attributable to the state under the rules of attribution of state responsibility52.

This holding is not territorially circumscribed, nor limited to the state where the events are taking place, and also applies to third states depending on the circumstances of the case53. This interpretation is in line with the Genocide Convention, which nowhere states that the obligation of prevention upon states and the obligation not to commit genocide upon individuals –to adopt a restrictive reading of Article I of the Genocide Convention- are territorially limited. Moreover, given the character of genocide as an international crime, its commission triggers the international responsibility of the state even when the events are taking place only on the territory of the responsible state against its own population54.

B. Serious breaches attributable to the state

In order to apply the aggravated regime of the ARSIWA, the breach, constituted by an action or an omission, must be serious and attributable to the state. However, in the case where the breach does not reach this threshold of seriousness, the state will still be responsible but the aggravated regime and its consequences cannot be applied.

49

Application of the Genocide Convention case, Judgment, para. 166.

50

Application of the Genocide Convention case, Judgment, para. 168-169 and para. 175-178.

51_{Art. IX Genocide Convention.}

52_{Application of the Genocide Convention case, Judgment, para. 179.} 53_{Application of the Genocide Convention case, Judgment, para. 183.}

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A serious breach constituted by an action or an omission:

An action:

The aggravated regime is only applicable for breaches which reach a certain level of ‘magnitude’55 and are ‘gross or systematic’, ‘carried in an organized or deliberate way’ or involve ‘violations of a flagrant nature, amounting to a direct and outright assault on the values protected by the rule’56.

From the outset, it may seem rather difficult to imagine how a breach of the prohibition of genocide could not be serious. Any of the acts prohibited under Article II of the Genocide Convention constitute gross violations of the prohibition of genocide, which, according to the ICJ, involve ‘a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity’ 57.

From the perspective of the individual, the requirement that the breach must be taken in a deliberate manner is automatically fulfilled in the case of genocide, because of the necessity of the specific intention for the prohibited acts to be qualified as genocide.

From the perspective of the state, examples from recent history show that in most situations of genocide, the state adopted a “systematic policy” towards the targeted group58. Such systematic policy may be understood as the dolus specialis59 of the state, as required by the Genocide

Convention for individual criminal responsibility. The ICJ has recognized this possibility, but it applied a strict test by requesting that the specific intent of the state was convincingly proved by particular circumstances, by a general plan to the end of genocide or by a pattern of conduct that “could only point to the existence of such intent” 60.

This reasoning is not restricted to the actual perpetration of the crime of genocide. Article III of the Genocide Convention also prohibits conspiracy of genocide, attempt to genocide, and direct and public incitation to genocide. Those are inchoate crimes, meaning that they are prohibited

55_{ILC Commentary on Art. 40, para. 7.} 56

ILC Commentary on Art. 40, para. 8.

57

Reservations to the Genocide Convention, Advisory Opinion, p.23.

58_{A. Nollkaemper, Concurrence between Individual Responsibility and State Responsibility in International Law,}

p.624.

59_{Application of the Genocide Convention case, Judgment, para. 187.}

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only on the basis of the harm they are intended to produce, irrespective of their effects61. The responsibility of the state may well be engaged on the basis of an attempt to commit genocide even if the attempt has failed, or on the basis of incitement to genocide even if this incitement has not provoked the expected effects.

One can imagine the case where a state official of a low rank in the hierarchy takes part in the genocide being committed on a foreign territory, against the orders he received. The state of this individual will automatically be responsible for the breach of the prohibition of genocide, but, without the proof that the breach was systematic, taken in a deliberate manner or involving flagrant violation of the rule amounting to dire consequences for the rights of the members of the group targeted, the state will not face the special consequences attached to serious breaches of peremptory norms.

An omission:

According to the ICJ in its judgment on the Application of the Genocide Convention, the failure by a state to prevent the commission of genocide by another party cannot amount to complicity in genocide62. The reasoning of the Court is that complicity in genocide requires full knowledge of the intention of genocide and acts of aid or assistance having substantially contributed or that had substantial effects on the completion of the crime. By contrast, a failure to prevent genocide according to article I of the Genocide Convention implies an omission, a failure to adopt the appropriate measures when the state could have acted. A failure to prevent does not require the state to have full knowledge of the genocidal intention, only that the state could not have been unaware of the intention of the perpetrators.

This reasoning may be questioned. It is possible to imagine the case where complicity in the commission of genocide could result from an omission. Imagine for instance that state A, through one of its organs or agents, does not prevent state B from entering its territory even though it has knowledge of the genocidal intention of state B against a targeted group located on state A’s territory, and does so with the intention of contributing to the genocide. In this case,

61_{Module No. 6 Genocide, International Criminal Law & Practice Training Materials, International Criminal Law}

Services, Part of the OSCE-ODIHR/ICTY/UNICRI Project “Supporting the Transfer of Knowledge and Materials of War Crimes Cases from the ICTY to National Jurisdictions”, p. 30.

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the inaction of state A, which constitutes an omission to act in order to prevent state B from entering its territory, contributes substantially to the genocide of the targeted group.

As stated in Article 40 of the ARSIWA, the breach must be serious, involving a gross or systematic failure to fulfill the obligation. In the example above, the inaction of the state was taken in a deliberate manner in order to facilitate the completion of the crime by state B. This inaction could be tested against the intensity of its consequences for the victims63. In this context, state A could be held responsible for a serious breach of the peremptory prohibition of genocide by virtue of its complicity with state B.

If we accept the reasoning of the Court in the Application of the Genocide Convention case and restrict omissions to a failure by a state to prevent genocide, the obligation to prevent genocide as enshrined in Article I of the Genocide Convention must also be a peremptory norm.

If this is not the case, then Article 40 cannot be applied and an omission to prevent the commission of genocide cannot constitute a serious breach in the meaning of Article 40.

Under the typology adopted in international human rights law, the obligation upon states to prevent the crime flows directly from the primary and peremptory prohibition of genocide. Reading this interpretation in correlation with the formulation of Article 40 which applies to ‘obligations arising from peremptory norms of general international law’64, one can deduce that the obligation of prevention arising from the peremptory prohibition of genocide is therefore covered by Article 40.

From the interpretation adopted by the ICJ in the Application of the Genocide Convention case, the obligation of states not to commit genocide, under the Genocide Convention, arises from the obligation of prevention and punishment. It is necessary for the application of Article 40 that the obligation of states to prevent and punish genocide is a norm of jus cogens. The Court was very careful not to ask this question, as it confines itself to determining the scope of the obligation of prevention within the Genocide Convention 65 and did not try to apply the aggravated regime of responsibility of Articles 40 and 41 of the ARSIWA.

63_{ILC Commentary on Art. 40, para. 8.} 64_{Art. 40 ARSIWA, emphasis added.}

65_{Application of the Genocide Convention case, Judgment, para. 166.: “The Court next considers whether the}

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According to Gattini66, it seems that this obligation to prevent genocide is not a peremptory norm of international law in the meaning of Article 40 of the ARSIWA.

If one assumes that the obligation to prevent genocide does constitute jus cogens, then an omission would constitute a serious breach in the meaning of Article 40(2) when taken in a deliberate, organized or systematic manner, or when implying a flagrant violation of the rule protected67. As noted above, the obligation to prevent genocide is an obligation of ‘due diligence’. Therefore, when the state could not have been unaware of the genocidal intention of the perpetrators and had at its disposal ways to prevent the commission of the genocide, but did not act or did not take the appropriate steps, to determine its seriousness, the inaction of the state will be tested against factors such as the intent to violate the norm or the intensity of its consequences for the victims.

In the case of a decision by state officials not to act to prevent genocide taken in a deliberate, organized and systematic manner, one must be careful about the intention behind the decision. Indeed, if the state, through its organs or agents, shares the intention of the perpetrators of the genocide, then this omission could amount to complicity. However, if the decision not to act was not taken on the basis of the specific intent, the men rea, the state is still responsible for a serious breach of the peremptory obligation to prevent genocide.

Attribution of responsibility:

In order for the responsibility of the wrongdoing state to be engaged, the action or omission must be attributable to that state68.

As Nollkaemper notes, “state responsibility is born not out of an act of an individual but out of an act of the state”69. The acts of states are determined in relation to the rules of international law70. However, states are abstract entities that can only act through individuals. This principle, formulated by the Permanent Court of International Justice (hereinafter the

66_{A. Gattini, Breach of the Obligation to Prevent and Reparation Thereof in the ICJ’s Genocide Judgment, EJIL}

(2007), Vol. 18 No. 4, p. 697.

67

ILC Commentary on Art. 40, para. 8.

68_{Art. 2(1) ARSIWA}

69_{A. Nollkaemper, Concurrence between Individual Responsibility and State Responsibility in International Law,}

p.616.

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PCIJ)71, was duly applied by the International Military Tribunal in Nuremberg72, which held that “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of International Law be enforced”. That said, the state is responsible for the acts of individuals in breach of an international obligation of the state when those acts can be attributed to it under the rules of attribution of state responsibility73.

The general rule is that the state is responsible for the breaches committed by its organs74 or by agents at its disposal or acting under its instructions, direction or ‘effective control’75, even if they have not acted in accordance with their instructions76. This is the test applied by the ICJ in the case concerning the Application of the Genocide Convention in order to determine Serbia’s responsibility for the genocide in Srebrenica77. The Court had to determine whether the Bosnian Serb Army was an organ of Serbia under its national law or whether its acts could be attributable to Serbia because it acted on Serbia’s instructions or under its direction or control78.

Some specific articles of the ARSIWA on the rules of attribution may be relevant. It is often seen that the crime of genocide is committed in a situation of disruption of the political situation within the state. Articles 9 and 10 foresee the situation of a conduct carried out by a group in the context of the absence or default of official capacities, and the situation of insurrectional or other movements. For instance, in 1994, the Rwandan genocide took place in a context of daily violence and default of official capacities, following the shooting of the plane carrying the

71_{Certain questions relating to settlers of German origin in the territory ceded by German to Poland, Advisory}

opinion, PCIJ 1923 Series B, No 6, p. 22

72_{Art. IV Genocide Convention ; International Military Tribunal, judgment of 1 October 1946, in The Trial of}

German Major War Criminals. Proceedings of the International Military Tribunal sitting at Nuremberg, Germany, Part 22 (22nd August, 1946 to 1st October, 1946), p.223. The judgment of the Nuremberg Tribunal is available at: [www.yale.edu/lawweb/avalon/imt/proc/judcont.htm] (visited on 14 July 2007). France et. al. v. Goering et. al., 22 IMT 411, 466 (Int'l Mil. Trib. 1946), p.223.

73_{D. Turns, Application of the Convention on Prevention and Punishment of the Crime of Genocide - Bosnia and} Herzegovina v Serbia and Montenegro, 8 Melb. J. Int'l L. 398 (2007), pp. 409 – 412;

74

Art. 4 and Art. 5 ARSIWA

75_{Art. 6 and Art. 8 ARSIWA} 76_{Art. 7 ARSIWA}

77_{Application of the Genocide Convention case, Judgment, para. 384-415.} 78_{Application of the Genocide Convention case, Judgment, para. 384.}

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President Habayarimana, from the Hutu ethnicity79. Article 9 of the ARSIWA states that the responsibility of the state may be engaged by the actions and omissions of the person(s) exercising de facto elements of governmental authorities where the situation called for the exercise of those elements of authorities. Therefore, in a similar situation, a state from the international community could, under the aggravated regime of the ARSIWA, invoke the responsibility of Rwanda for a serious breach of the prohibition of genocide and requests for the application of the measures foreseen in Article 41.

The distinction between action and omission has an effect concerning questions of attribution80. Indeed, it is simpler to attribute the killings of members of a targeted group to a state and to link this to the prohibition of genocide than to determine the responsibility in the case where a state fails to take the appropriate measures in order to prevent another party to enter its territory and exterminate members of a group. In the latter case, the state may have taken some measures but they may not be appropriate.

Article 40 and the commentaries of the ILC on this article do not mention the question of shared responsibility. This question is treated by Article 47 of the ARSIWA, which provides for the scenario where multiple states are responsible for the same wrongful act. In such a case, it is possible that the breach will not reach the threshold of seriousness and thus the aggravated regime with its special consequences will not be applied81.

79

Rwanda: A Brief History of the Country, Outreach Programme on the Rwandan Genocide and the United Nations Available at [http://www.un.org/en/preventgenocide/rwanda/education/rwandagenocide.shtml].

80_{F. Latty, ‘Actions and Omissions’ in J. Crawford and others (eds) The law of International Responsibility (Oxford}

University Press, Oxford 2010) p. 361.

81_{E. A. Wyler & L.A. Castellanos-Jankiewicz, Serious breaches of peremptory norms, SHARES Research Paper 39}

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III. Third states and Article 48

According to Article 48 (1)(b) of the ARSIWA, “any state other than the injured state is entitled to invoke the responsibility of another state (…) if (…) the obligation breach is owed to the international community as a whole”.

It must be acknowledged that under the responsibility regime, invocation of responsibility is distinct from a simple protests; it needs a more formal aspect, such as proceedings before an international tribunal82.

A. Article 48(1)(b)

Under the traditional regime of responsibility, a state must be a victim of the international wrongful act committed by another state in order to be able to bring a claim for responsibility83. According to the ICJ84, this means that the latter state must have violated an obligation towards the nationals of the former state and that the wrongdoing state is legally bound by the obligation towards the injured state.

However, in relation to the aggravated regime, the relevant provisions are to be found in Article 48(1)(b). In this respect, the role of third states is crucial. This article prescribes that states other than the directly injured ones can invoke the responsibility of the state when the obligation breached is owed to the international community as a whole, and thus those provisions are not limited to serious breaches of peremptory norms in the meaning of Article 40.

In the Barcelona Traction case85, the Court made it clear that ‘all states’ have an interest in the protection of obligations erga omnes and this interest arises directly from the fact that the peremptory norm has been breached and is not related to the status of the state as a victim86.

82_{ILC Commentary on Art. 42, para. 2.} 83

Art. 42 ARSIWA.

84

Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, I. C. J. Reports 1949, pp. 181-182.

85_{Barcelona Traction, Judgment, para. 33, in which the Court departed from its earlier case law: South West Africa,}

Second Phase Judgment, I.C.J. Reports 1966.

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This implies not a bilateral regime but a multilateral one, where states can invoke the responsibility of the wrongdoing state whether or not their nationals have been injured by the breach.

The application of Article 48 depends on whether the state invoking the responsibility of the wrongdoing state considers that the obligation is of an erga omnes character. This interpretation will be endorsed or not at the admissibility phase before the international court or tribunal deciding on the claim.

The ICJ recognizes that norms ‘concerning the basic rights of the human person’ protect the collective interests of all states and that the prohibition of genocide is a norm having a jus

cogens character and therefore being owed ‘towards the international community as a whole’87.

From the formulation of Article 48 and its commentary88, it can be inferred that this article only foresees the possibility for states interested in the protection of the norm to invoke the responsibility of the wrongdoing state; it does not impose an obligation to do so upon those states. This is rather surprising, given the obligation of cooperation enshrined in Article 41. It is indeed curious to foresee an obligation of international cooperation for serious breaches of peremptory norms but not to provide for an obligation of invocation of responsibility in the same circumstances. It means that when genocide is being committed, third states are not bound by an obligation to invoke the responsibility of the wrongdoing state, but they have the obligation to cooperate to bring the genocide to an end.

B. Article 48(2)

The second paragraph of Article 48 prescribes what categories of claim the ‘interested’ states can make. Accordingly, states may request cessation of the internationally wrongful act – only for a continuing breach89, assurances and guarantees of non-repetition, and performance of the

87

E. A. Wyler & L. A. Castellanos-Jankiewicz, Serious breaches of peremptory norms, p. 3 ; Application of the

Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, I.C.J.

Reports 1996, p. 595, para. 31–32 ; J. Crawford, Responsibility to the International Community as a Whole, 8 Ind. J. Global Legal Stud. 303 2000-2001.

88_{Art. 48 ARSIWA: “is entitled”; ILC Commentaries on Art. 48, para. 8: “may invoke”.} 89_{E. A. Wyler & L. A. Castellanos-Jankiewicz, Serious breaches of peremptory norms, p. 21.}

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obligation of reparation in the interest of the injured state or of the beneficiaries of the obligation breached.

Compared to Article 42 on the categories of claim for injured states, the claims that an ‘interested’ state can make are rather limited90. However, those claims are based on the fact that the state invoking the responsibility of another state in the context of erga omnes obligations is not injured as such by the breach but has ‘only’ a legal interest in the protection of the norm.

In the case of the obligation of reparation, the ILC accepted the possibility that no state might actually be injured by an internationally wrongful act. In this case, the state invoking the responsibility of another state under Article 48(1)(b) can only request reparation in the interest of the beneficiaries of the obligation breached91. Regarding genocide, the beneficiaries of the prohibition are the populations targeted by the wrongdoers. It is hard to see how the state could not be injured when members of its population are being targeted for genocidal purposes. As soon as genocide has been committed, the prohibition of genocide owed to the group targeted is breached, and therefore the state is injured92. This also applies to conspiracy, attempt and/or incitation to genocide, even if it failed or did not take place.

C. Article 48(3)

Even though the aggravated regime implies legal consequences distinct from those of the ‘traditional’ regime of responsibility under the ARSIWA, application of Articles 40 and 41 must still fulfill the basic procedural requirements. Indeed, the ARSIWA request that any invocation of responsibility follow the procedural rules of notifications of claims, nationality of claims and the rules on loss of right to invoke the responsibility93.

The fact that a state has to notify the claim to the state responsible for genocide is not in itself an issue for the invocation of a responsibility for a serious breach of a peremptory obligation.

90_{ILC Commentary on Art. 48, para. 11.} 91_{ILC Commentary on Art. 48, para. 12.}

92_{The Mavrommatis Palestine Concession (Greece v United Kingdom), PCIJ, 1924, series A, no. 2, pp. 11-12.} 93_{Art. 48(3) ARSIWA; ILC Commentary on Art. 48, para. 14.}

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However, the fact that a state which is not injured by the genocide can bring a claim based on its legal interest towards the protection of a peremptory norm raises an issue considering the rule of nationality of claims contained in Article 44. When the rights of a national of a state are breached, at the international plane the state is injured. According to the rule of nationality, only the state of nationality of the individual can bring a claim for the injuries suffered by the individual.

If the state has not been injured, meaning that its own population has not been injured by the genocide, therefore the nationality of claims rule implies that responsibility cannot be invoked94. This is obviously at odds with Article 48 which allows states not injured to invoke the responsibility of a wrongdoing state.

94_{I. Scobbie, The invocation of responsibility for the breach of ‘obligations under peremptory norms of general} international law’, EJIL 13 (2002), p. 1215.

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IV. The international community and Article 41

In case of a serious breach of an obligation arising from a peremptory norm of international law, Article 41 of the ARSIWA provides for the obligations, upon the international community, to cooperate to bring the breach to an end, the obligation not to recognize the situation created by the breach as lawful and the obligation not to render aid or assistance in maintaining the unlawful situation95. Those obligations do not constitute primary norms. As Milano call them, they are only ‘communitarian countermeasures’96, measures that would otherwise be unlawful if not taken in response to a serious breach of a peremptory norm of general international law97. Therefore, those obligations to react are to be distinguished from the obligation to prevent genocide, which is a primary norm. The obligation to punish is also dependent on the actual finding and is therefore linked with the secondary norms of the ARSIWA.

A. Article 41(1): Obligation to bring the breach to an end

Obligation of cooperation to bring the breach to an end in international law:

The idea of international cooperation in order to protect the fundamental rights of individuals is not a new principle brought by the ILC. Indeed, it is already present in various international treaties and other instruments of soft law.

As early as 1919, this principle was enshrined in the first paragraph of the Covenant of the League of Nations98. It was later endorsed by the UN Charter in its Preamble and in Article 1, and further specified in Articles 24(1) and 49, which request that the member states of the UN

95_{“1. States shall cooperate to bring to an end through lawful means any serious breach within the meaning of}

article 40. 2. No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation. 3. This article is without prejudice to the other consequences referred to in this Part and to such further consequences that a breach to which this chapter applies may entail under international law.”

96

E. Milano, The doctrine(s) of Non-Recognition: Theoretical Underpinnings and Policy Implications in Dealing

with De Facto Regimes, European Society of International Law, Pre-Conference Papers, 2nd ESIL Research Forum, “The Power of International Law in Times of European Integration” Budapest, 28-29 September 2007.

97_{ILC Commentary on Chapter II Part III, para. 1.} 98_{Covenant of the League of Nations, 28 April 1919}

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cooperate to carry the decisions of the UN Security Council for actions with respect to the threats to the peace, breaches of the peace and acts of aggression.

In 1969, the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the UN Charter99 was adopted by the UN General Assembly. The principles it embodies are customary international law as stressed by the ICJ in the 1986 Nicaragua Case100. This Declaration specifies that states must cooperate in order to maintain international peace and security and to promote universal respect for, and observance of, fundamental human rights for all. Such cooperation can be requested in the case of the implementation of measures undertaken under the realm of the United Nations.

The Preamble of the Rome Statute of the ICC mentions cooperation between member states to prevent and punish effectively the crimes within the jurisdiction of the Court, including genocide101. The Rome Statute of the ICC also provides in Article 86 a general obligation of cooperation for states that are not responsible for the breach of the peremptory prohibition of genocide to help the Court in its investigation and prosecution, but this does not refer to any cooperation between states themselves, only between states and the Court102.

In the Preamble of the Genocide Convention, international cooperation is required in order ‘to liberate mankind from such an odious scourge103’, namely genocide. The possibility for the states to request assistance from the competent organs of the United Nations for the prevention and suppression of genocide is included in Article VIII. This Article is geared towards the recognition of genocide by the UN Security Council as a threat to international peace and security104 involving action based on Chapter VII.

Furthermore, the necessity of international cooperation for the prevention of genocide is enshrined in the international jurisprudence. In its Advisory Opinion on the Reservations to the

99_{Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in}

accordance with the Charter of the United Nations, UNGA Res 2625 (XXV) 24 October 1970 UN Doc A/RES/25/2625.

100

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, ICJ Reports 1986, 14, p. 114, para. 188.

101_{Preamble of the Rome Statute of the International Criminal Court.} 102_{Art. 86 Rome Statute of the International Criminal Court.} 103_{Preamble of the Genocide Convention, para. 3.}

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Genocide Convention case105, the ICJ emphasized the universal character of the cooperation necessary to bring the breach to an end. This was stated again in the Judgment of the Court on the case relating to the Application of the Genocide Convention.

The distinction between a breach of the obligation not to commit genocide and the obligation to prevent genocide also finds relevance concerning the obligation of reaction of third states. Cooperation in face of a serious breach of the obligation to prevent genocide will not have the same elements as cooperation to bring genocide to an end. Indeed, one can wonder what actions or sanctions could adopt states in order to stop the state from not acting when it has the means and opportunities to do so. It seems more likely that states will impose sanctions and take actions against the perpetrators of the genocide than against the states that did not take the appropriate steps to prevent it from happening.

Application of the obligation of cooperation of Article 41(1) to the prohibition of genocide:

The obligation of cooperation between third states to bring the genocide to an end can only be applied logically for continuing breaches106.

Furthermore, from the formulation of Article 41, it is understood that this obligation is not circumscribed by the legal qualification of the violation as ‘a serious breach of a peremptory norm under general international law’ by an international court or tribunal. The only requirement imposed by the Article is that states use lawful means in order to bring genocide to an end107.

Article 41(1) of the ARSIWA does not impose upon states an individual obligation to react in case of a serious breach of a peremptory norm108. It imposes a collective obligation, bearing upon third states to take appropriate steps in order to bring the breach to an end, be they injured or not by the breach. In the case of the prohibition of genocide, this article implies that the

105

Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion (1951) ICJ Rep 15, p. 23.

106_{E. A. Wyler & L. A. Castellanos-Jankiewicz, Serious breaches of peremptory norms, p. 21.} 107_{Art. 41(1) ARSIWA; ILC Commentary on Art. 41, para. 3.}

108_{Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,}

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international community, via the UN Security Council, via a ‘coalition of the willing’ or via other organizations, must act to stop the prohibited acts from being committed109.

The Article does not prescribe any example of forms of cooperation. According to the commentaries of the ILC, cooperation can take the form of an action through the United Nations, but may also be a ‘non-institutionalized’ action110. In any event, cooperation is needed as a response to serious breaches of peremptory norms and has already been seen in various situations111, taking various forms.

The first possible scenario of international cooperation dedicated to bring genocide to an end is the finding by the UN Security Council of the existence of the situation as a threat to, or a breach of the international peace and security, necessitating the application of collective measures. This does not necessarily imply that the UN Security Council will apply the legal qualification of genocide to the situation.

Appropriate measures could include imposing an arms embargo, economic sanctions, or even the administration of the territory where the genocide is happening by competent organs of the United Nations112.

After the start of the fighting in Yugoslavia in 1991, the UN Security recognized the situation as a threat to international peace and security and, acting under Chapter VII of the UN Charter, imposed upon Yugoslavia a complete embargo on weapons and other equipment and products113. The Council also condemned the practice of ethnic cleansing and restated the obligation of prevention of genocide under the Genocide Convention114. Those steps are in accordance with the requirements of Article 41(1). Even though, at this time, the situation had had not been qualified as a genocide by the ICTY or by the ICJ, international cooperation was

109_{ILC Commentary on Art. 41(1), para. 1.} 110_{ILC Commentary on Art. 41, para. 2.}

111_{For example, see the military assistance to South Korea in 1950 under the realm of the United Nations: UNSC}

Res 83 (27 June 1950) UN Doc S/RES/83, UNSC Res 84 (27 June 1950) UN Doc S/RES/84, UNGA Res 377(V) (3 November 1950) UN Doc A/RES/377(V).

112

A. Nollkaemper, Concurrence between Individual Responsibility and State Responsibility in International Law, p. 626.

113_{UNSC 713 (23 September 1991) UN Doc S/RES/713, para. 6; UNSC 787 (16 November 1992) UN Doc}

S/RES/787, para. 9-13.

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undertaken on the legal basis of Chapter VII of the UN Charter. The Council adopted Resolution 1004 on the break of the events in Srebrenica. After rejecting the possibility of a military intervention, it demanded the cessation of the hostilities and the respect of the safe area. This was obviously not sufficient to prevent genocide to occur in Srebrenica, but one might consider that the minimum appropriate actions were adopted from the beginning of the events in 1991. One can also question the reactivity of the international community through the United Nations during the Rwandan genocide of 1994. In response to the warnings by the Canadian force commander of the UN Assistance Mission in Rwanda, the Under-Secretary General for Peacekeeping Kofi Annan formally rejected the possibility of an extension of the mandate of the mission115.

Neither the ARSIWA nor the commentaries provide for guidelines in the case of a failure of the state to cooperate to bring the breach to an end. It is difficult to imagine how the responsibility of states not cooperating to suppress acts of genocide can be engaged or even apportioned. An obligation to cooperate to bring the breach to an end can only be an obligation for third states to try to achieve to bring the genocide to an end116, it cannot be an obligation to achieve this specific result. This obligation must reflect the capacities of third states to intervene. The responsibility for failure to cooperate to stop a genocide could be based on the relationships between the wrongdoers and the states, the financial and military resources at disposal of the states117, the political situation within third states and other factors indicating the ability of the state to take part in the international coalition formed to stop the genocide and avert more crimes. These criteria might seem to go against the fundamental principle of equality between states. However they do not question the legal equality of states, but instead highlight the material, cultural, geographical or other differences between states that may place them in a better position to intervene to stop genocide.

115

S. Chesterman, T. M. Franck, D. M. Malone, Law and Practice of the United Nations (Oxford University Press 2008), p. 257-267.

116_{PM. Dupuy, Reviewing the Difficulties of Codification: On Ago’s Classification of Obligations of Means and} Obligations of Result in Relation to State Responsibility, EJIL (1999), Vol. 10 No. 2, p. 375.

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B. Article 41(2): Obligations of non-recognition and non-assistance

Obligations of non-recognition and non-assistance in international law:

Following a breach of a norm, be it of jus cogens or not, a new legal relation is created between the wrongdoing state(s) and the injured state, if any, or between the wrongdoing state(s) and the interested states in the sense of Article 48118.

In this context, states have under general international law a negative obligation of abstention that encompasses two negative components: the duty of recognition and the duty non-assistance.

The duty of non-recognition implies that states shall not recognize as lawful a situation created by a breach of an international obligation. Non-recognition is limited to unlawful situations taking the form of a legal claim to a territory or a title for instance119. This duty was first advanced by the Secretary of State of the United States of America Henry L. Stimson during the 1931-1932 Manchuria crisis, where he stated that the US would not recognize the changes created by the aggression120. This principle was endorsed by other states of the international community through the League of Nations. Later on, it was applied by the UN Security Council concerning the annexation of Kuwait by Iraq121 and the declaration of the Turkish Republic of Northern Cyprus122.

The negative obligation of non-assistance prescribes that no state can provide aid or assistance to another state in maintaining the unlawful situation created by an internationally wrongful act123. This idea of non-assistance is included in Article 2 of the UN Charter on the Principles

118_{R. Ago, Second Report on State Responsibility, ILC Ybk 1970/II, para. 22.}

119_{N.H.B. Jørgensen ‘The Responsibility to Protect and the Obligations of States and Organisations under the Law}

of International Responsibility’ in J. Hoofman and A. Nollkaemper (eds), Responsibility to Protect from Principle

to Practice (Amsterdam University Press, Amsterdam 2012) ; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Separate opinion of Judge Kooijmans, para. 44.

120

Secretary of State’s note to the Chinese and Japanese Governments, in Hackworth, Digest of International Law (Washington, D.C., United States Government Printing Office, 1940), vol. I, p. 334; endorsed by Assembly resolutions of 1932, League of Nations Official Journal, March 1932, Special Supplement No. 101, p. 87.

121_{UNSC Res 662 (9 August 1990) UN Doc S/RES/662} 122_{UNSC Res 541 (18 November 1983) UN Doc S/RES/541} 123_{ILC Commentary on Art. 41, para. 11.}

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guiding the actions of the United Nations. It requests states not to act in relation with states targeted by a sanction taken by the United Nations.

The duty of non-assistance is restricted to the areas related to the serious breach and does not impose upon states a total freeze of the relationship with the targeted state124. However, sanctions taken by the UN Security Council may imply a rupture of all economic relations between the member states and the targeted state, for instance, with an asset freeze of individuals and entities deemed to be responsible for the breaches125.

Both duties have been recognized by the ICJ in its Advisory Opinion on the Namibia case126 and in its Advisory Opinion on the Wall in the Palestinian Territories case127, and the Court specified that the obligatory status of those obligations were flowing from the erga omnes character of the obligations breached.

Application of the obligations of non-recognition and non-assistance of Article 41(2) to the prohibition of genocide:

The negative duty of non-recognition in Article 41(2) requests states to abstain from recognizing an unlawful fact created by a serious breach of a peremptory norm.

In the context of genocide, it is hard to see how this duty of non-recognition could be implemented. What legal claims can the responsible state advance that third states should refrain from recognizing? There is currently no state practice of non-recognition for the crime of genocide128.

124

Art. 41 UN Charter: “The Security Council may decide what measures not involving the use of armed force are to be employed (...). These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication (...)” emphasis added.

125_{UNSC Res 1267 (15 October 1999) UN Doc S/RES/1267, para. 4; UNSC Res 1333 (19 December 2000) UN}

Doc S/RES/1333, para. 8.

126_{Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)} notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, para 119.

127

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, para. 159.

128_{S. Talmon, ‘The Duty Not to ‘Recognize as Lawful’ a Situation Created by the Illegal Use of Force or Other}

Serious Breaches of a Jus Cogens Obligation: An Obligation without Real Substance?’ in C. Tomuschat and JM. Thouvenin, The Fundamental Rules of the International Legal Order: Jus Cogens and Erga Omnes Obligations (Martinus Nijhoff publisher, Leiden 2006) p. 103.

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The obligation of non-assistance in Article 41(2) prescribes that no state can provide aid or assistance to another state in maintaining the unlawful situation created by a serious breach to a peremptory norm. Article 16 of the ARSIWA also deals with the matter of assistance or aid. However, the ILC clarified that article 16 deals with aid or assistance during the commission of the breach, and that the obligation contained in article 41(2) deals with aid or assistance after the commission of the breach, in the maintenance of the unlawful situation129.

C. Article 41(3)

Content of the responsibility of the state:

With Article 41(3), the ILC stressed that the normal consequences flowing from an internationally wrongful act are still applicable even for serious breaches of peremptory norms. Thus, the content of the responsibility of the state which committed genocide or took part in the genocide has the same basis as for a breach of an obligation not arising from a peremptory norm130. However, in the former case, there are additional obligations attached to the responsibility of the states.

The first consequence of Article 41(3) is that the state is under an obligation to cease the genocide and to give assurances and guarantees of non-repetition131. As the prohibition of genocide is a peremptory norm with erga omnes effects, the obligations of cessation and assurance and guarantees of non-repetition are also owed towards the international community as a whole132.

Of equal importance is the obligation of the state to provide for reparation in an adequate form for the wrongful act133. The principle that “reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed” was stated as early as 1927 by the PCIJ in the

129

LC Commentary on Art. 41, para. 11.

130_{ILC Commentary on Art. 41, para. 13.} 131_{Art. 30 ARSIWA.}

132_{Art.33 ARSIWA.} 133_{Art.31 ARSIWA.}