To determine whether the alleged violation of international law, and in particular the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), can be brought before a court of law in order that States, who may be legally responsible for the commission of, or failure to prevent, the genocide of the Yazidis, are held accountable in addition to individual perpetrators.
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International law is the body of rules that regulate the conduct of sovereign states in relation to each other. It sets up a framework based on States as the principal actors in the international legal system, defining their legal responsibilities in their conduct with each other, within State’s boundaries, and in their treatment of individuals.
All States have a legal interest - perhaps even amoral or ethical imperative - to ensure that jus cogens or ‘peremptorynorms’ of general international law, such as the prohibition on genocide, areupheld and/or that obligations owed to the international community, as a whole, are enforced.
The erga omnes and erga omnes partes character of the rights and obligations owed under customary international law and the Genocide Convention means that there is a duty on all States to protect the rights and obligations thereof. That is especially the case for States that have a particular ability to affect the commission of prohibited acts because they are geographically close to the place where the prohibited acts are or maybe committed, or because, arguably, their power or effective influence may make an impact.
Genocide is defined by Article II of the Genocide Convention as the commission of certain prohibited acts with intent to destroy, in whole or part, a national, ethnic, racial or religious group (“protected group”), as such. The prohibited acts are: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction, in whole or in part; (d) imposing measures intended to prevent births within the group; or (e) forcibly transferring children of the protected group to another group.
Aside from the genocidal acts themselves being punishable under international criminal law, other prohibited conduct includes conspiracy, incitement, attempt and complicity to commit genocide, whether by rulers, public officials or private individuals. Genocide does not require a nexus to an armed conflict and so is punishable both during wartime and peacetime.
Intent to destroy, which may be directly ascertained or inferred from a variety of conduct including statements as well as the pattern of prohibited acts of perpetrators, has been described in the following way: “For any of the acts charged to constitute genocide, the said acts must have been committed against one or more persons because such person or persons were members of a specific group, and specifically, because of their membership in this group. Thus, the victim is singled out not by reason of his individual identity, but rather on account of his being a member of a national, ethnical, racial or religious group.” (Rutaganda, ICTR-96-3-T, para. 60)
A State is responsible for its own acts and omissions that amount to a failure to comply with the broad obligations thatStates owe under the Genocide Convention. Those obligations include:
It requires States Parties to the Genocide Convention to take measures to prevent the commission of genocide the instance a State learns, or should have learned, that there is a serious risk of genocide.
Every State with a capacity to effectively influence the actions of persons likely to commit, or already committing, genocide has a duty to deploy all means reasonably available to them to prevent genocide and to stop a continuing one. It overlaps with duties to punish (due to its deterrence effect) and the duties to prohibit and enact legislation to give effect to the Genocide Convention.
The obligation to prevent has extraterritorial scope which means that the obligation extends to acts committed outside their own borders. The duty to prevent is one of conduct (in taking measures) rather than result (in preventing genocide). It is owed by all States and is part of customary international law. The duty is ongoing or continuing once genocide starts.
The obligation on States Parties to the Genocide Convention to punish acts of genocide requires serious consideration by state agents, organs and officials to identify, investigate and prosecute alleged perpetrators.
States, particularly where domestic law allows, should as a bare minimum: (a) investigate allegations of crimes suffered by victims who are within their jurisdiction; (b) carry out appropriate due diligence on prohibited acts being committed and assess whether genocide is being committed by individual perpetrators; (c) ensure legal persons and nations of their State are not, in any way, complicit in possible acts of genocide; (d) put into place all necessary measures to provide that agents, organs and officials of theState do not directly or indirectly contribute to possible acts of genocide; and/or (e) investigate, apprehend and prosecute possible perpetrators within their jurisdiction and put into place appropriate judicial mechanisms to do the same.
The prohibition, prevention and punishment of genocide constitute binding obligations on States. The architecture of atrocity prevention, set up under the auspices of the United Nations, of which the Convention forms part, relates to the obligations on States. There are no international courts or tribunals before which ISIS, as a non-State actor, maybe brought. In addition, there is currently no international tribunal that has jurisdiction to prosecute individual ISIS fighters for their crimes. Prosecution of individual perpetrators for genocide, before domestic courts of certain States is possible under universal jurisdiction, although this has rarely happened. For example, in most States, prosecutions of ISIS fighters have been predominately for terror-related offences. This is an issue that needs to be addressed.
Notwithstanding, the successful prosecution of genocide in November 2021 in Germany of an ISIS fighter is welcome. Equally, however, it is important to recognise that it is highly likely that ISIS could not have perpetrated these atrocities, if States had fulfilled their obligations to prevent genocide, or not to be complicit in acts of genocide.Allegations have been made against various States in this respect. Engaging the responsibility of States in respect of the crimes of ISIS is important to closing the current gap in the legal accountability framework, and to ensuring the integrity of the international legal order.
Universal jurisdiction is the principle that allows States to exercise jurisdiction over international crimes even when they are not committed in the State’s territory and the victims or suspected perpetrator are not nationals of that State. It is based on the idea that some crimes are so serious that they are a threat to the international community as a whole and therefore States have an obligation to investigate and prosecute suspected perpetrators even if there is no direct link between the crime and the prosecuting State. Given that it can provide access to justice for victims, universal jurisdiction is an important tool for ensuring the prosecution of serious international crimes.
Considering the issue of state responsibility, States can assist victims or survivors of the genocide by requiring a State, if they were responsible, to provide ‘just satisfaction’ to survivors/victims by way of: remedial actions, reparations, commitments for non-repetition, and steps to make effective in domestic law the ‘justice’ provisions of the Convention (not least civil and criminal mechanisms which facilitate prosecution of alleged perpetrators and allow for actions for damages) among others, including by way of provisions measures, where applicable.
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