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The New Times (Kigali)
By: Fred K. Nkusi
The International Court of Justice (ICJ), the principal judicial organ of the United Nations, declared that “it is clear that the obligation in question is one of conduct and not one of result, in the sense that a State cannot be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide: the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible.
A State does not incur responsibility simply because the desired result is not achieved; responsibility is however incurred if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide”, in this area the notion of “due diligence”.
The Court ruling rather reiterates the obligation of State Parties to the Genocide Convention of 1948. Clearly, every state has a duty to prevent genocide from occurring on its territory and in another state since the prevention and punishment of genocide is a concern of every state and of the international community as a whole. In fact, it was the first time the Court asserted that an autonomous obligation of diligent conduct to prevent genocide exists under Article I of the 1948 Genocide Convention.
The obligation to prevent the conduct of genocide appears that States are responsible only in relation to their best efforts rather than in relation to the occurrence of a certain event [genocide].
Following the 1994 Genocide against the Tutsi, which claimed over a million innocent Rwandans, the momentum to prevent genocide has increased markedly. At least today, all 193 UN Member States say in one chorus “Never Gain to Genocide”.
Importantly, the impetus for the exercise of universal jurisdiction over the crime of genocide arose under national and international judicial bodies. And this serves to ensure that the crime of genocide, one of the worst imprescriptible crimes, never go unpunished.
In most nations, the Penal Code allows for the application of universality to the crime of genocide.
In Rwanda, for example, under Article 14 of the Law Nº68/2018 of 30/08/2018 determining offences and penalties in general, better known as Penal Code proscribes that any person, whether a Rwandan or foreign citizen, a national or foreign non-governmental organization or association, that commits, inside or outside the territory of Rwanda, an international crime (i.e. genocide, crimes against humanity, and war crimes) or transnational crime may, if apprehended on the territory of Rwanda, be punished in accordance with the Rwandan law. It provides no limitation to universality in respect of foreigners who have committed genocide abroad, so long as they are international crimes.
In 1990s and early 2000s was a period where universal jurisdiction over the crime developed as a relative speedy pace. Of course, the ‘anti-impunity’ environment of that time has consistently contributed to the current trend against genocide.
The legacy of the Genocide Convention is clear that the jurisdictional grounds under which the crime may be punished. As such, States can and do rely on universal jurisdiction to prosecute genocide.
What is more, one of the justifications for this position is the obligation on States to punish the crime of genocide, under Article 1. Notwithstanding this, the reality is that cases where universality is exercised over genocide are few and far between.
It is important to underline that genocide can only be punished by a court of the territorial State or by an international tribunal is irreconcilable with the obligation imposed by Article 1 [of the Genocide Convention] on all States to repress the crime of genocide’.
Again, reflecting on the Genocide Convention, the development of universal jurisdiction over the crime of genocide is relevant. Its Article 6 explains the application of the universality principle to the crime in the context of the Convention.
The historical trajectory of the application of universality to genocide demonstrates that universal jurisdiction over genocide should be framed as part of the obligation to prosecute or extradite. In addition, it should not be forgotten that the territorial State and State of nationality should first have the opportunity to try the offender, given their strong nexus to the crime.
Moreover, the development of universal jurisdiction over the crime of genocide also demonstrates the importance of the creation of humanitarian rules outside of conventional international law.
The principle of university has given States and the international community the impetus to prevent, prosecute and punish genocide to deliver on their historic promise that it would happen ‘never again’. The recent 70th anniversary of the Genocide Convention inspires reflection on its development and critical assessment of its legacy.
On 9 December 1948, the United Nations General Assembly adopted the Genocide Convention in response to the Holocaust. It was designed to prevent and punish ‘acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group’.
At present, 150 states have ratified this treaty in the hope that current and future generations would not have to experience such heinous atrocities as committed during the Second World War.