Journal of International Criminal Justice Advance Access originally published online on August 21, 2007
Journal of International Criminal Justice 2007 5(4):859-874; doi:10.1093/jicj/mqm041
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What the ICJ did not say about the Duty to Punish Genocide
The Missing Pieces in a Puzzle
* Head of the International Law Division, the Law School, the College of Management Academic Studies, Israel. [ orna127{at}netvision.net.il]
** Associate Legal Officer, UN Office on Drugs and Crime (UNODC). The views expressed herein are those of the authors and do not necessarily reflect the views of the United Nations. We thank Noam Zamir of the Law School, The College of Management Academic Studies, for excellent research assistance. [ miri.sharon{at}unodc.org]
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Abstract |
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The article focuses on the legal implications of the construction of the International Court of Justice (ICJ or the Court) of the duty to punish genocide under Article VI of the Convention on the Prevention and Punishment of the Crime of Genocide in the Bosnia and Herzegovina v. Serbia and Montenegro judgment. It posits that the Court's discussion of the duty to punish is satisfying in terms of what it says and less satisfying in terms of what it is silent about. It is satisfying in the sense that the Court's construction of the duty to cooperate with international tribunals prosecuting genocide as including a duty of extradition, seems to extend beyond the plain language of the Convention and indeed beyond the parties’ original intent. It is not fully satisfying because the duty to prosecute remains quite limited. It is further argued that the obligation to punish genocide as established in Article I and the obligation to prosecute genocide as established in Article VI should be understood as two distinct obligations. Article VI merely sets the institutional arrangements for prosecution. Other normative sources support the conclusion that a general duty to prosecute perpetrators of genocide or extradite them for prosecution elsewhere applies even in those cases where the offence was not committed in the territory of a contracting state or when the offender is prosecuted by an international court that has jurisdiction over the state where the alleged perpetrator is found.