GENOCIDE & INTERNATIONAL LAW

Genocide & International Law

Genocide & International Law

Introduction

There are several cases that could be considered in order to highlight the importance of applying international law to genocide cases. It has been observed that, while in the Bosnia-Herzegovina Genocide Case the Court required 'evidence fully conclusive', the standard for attribution in Congo seems lower (Clarke, 2004, 1759). Certainly, there is a distinction between determining the quality of each piece of evidence and the standard of proof for a claim to prevail. However, the various tests used by the Court in analysing the evidence to reach its conclusion are indicative of the standard of proof actually applied by the Court. As it appears, the only consistent standard is whether the Court was satisfied with the evidence presented - whether this entailed convincing or conclusive evidence would vary depending on the Court's appreciation of the claim or specific issue (Clarke, 2004, 1759).

Thus, whereas the Omega Case teaches that the degree of certainty of the evidence increases as the charge becomes graver, analysts and authors say that the real test is whether the Court is satisfied with the evidence. Although combining the rulings in these cases somehow legitimizes the Court's discretion on the standard of proof to apply to the Omega Case, it also provokes the question why the Court chose such a high standard. The shifting standards cause confusion, leaving no concrete barometer for the Court's satisfaction. With the creation of a new species of state responsibility, it remains to be seen what standard of proof the Court will require in the future.

ICJ: The governing body

To its credit, the ICJ unequivocally ruled that prior individual conviction is not a condition sine qua non for state responsibility. This would address a situation where no proceedings are commenced because the individuals responsible are still in control of the state. Indeed, the Court concluded that it would accept as highly persuasive relevant findings of fact made by the ICTY and give due weight to any evaluation of the existence of the required intent from such facts.92 It thus appears that 'conclusive evidence' lies to a great extent in the findings of the criminal courts. However, the standard of proof in criminal cases is beyond a reasonable doubt. This means that although the standard of proof before the ICJ is only conclusive evidence, discharging this burden is conditioned upon satisfying a higher standard (Crosby, 1900, 900).

The state incurs international responsibility if the illegal acts can be attributed to it. Since the state as a legal construct can act only through natural persons, the nexus between the natural persons and the state to which the acts are being attributed needs to be established.93 Article 8 of Articles on State Responsibility provides that individual acts can be attributed to the state if:

Such individual is an organ of the state; or

The conduct is under the direction or control of the state.

This provision expands the coverage of state agents beyond de jure ...