What do the texts say?
The key treaty in international law concerning genocide is the Convention on the Prevention and Punishment of the Crime of Genocide, adopted in 1948 and ratified by more than 150 States. International courts have recognized that the Convention sets out principles forming part of general customary international law, including the prohibition of genocide, the obligation to prevent the crime of genocide, and the obligation to punish it.[1].
Article III reads as follows:
«"The following acts shall be punishable: a) Genocide; b) Conspiracy to commit genocide; c) Direct and public incitement to commit genocide; d) Attempted genocide; e) Complicity in genocide."».
This article therefore establishes complicity as an autonomous offense, on the same level as genocide itself.
Article 1 of the 1948 Convention further specifies that States Parties undertake not only to punish, but also to prevent genocide. This obligation is now considered a binding obligation erga omnes, engaging the international community as a whole.
Finally, Article IX confers jurisdiction on the International Court of Justice (ICJ) to hear disputes relating to the application of the Convention, including those concerning possible complicity by a State.
What do the courts say?
In his ruling Bosnia and Herzegovina vs. Serbia and Montenegro, The ICJ recognized that Article III of the 1948 Convention applied not only to individual criminal responsibility, but also to the international responsibility of States[2].
Regarding the concept of complicity applicable to States and what it implies, the ICJ referred to Article 16 of the Articles of the International Law Commission[3] which provides that the international responsibility of a State which provides aid or assistance to another State in the commission of an internationally wrongful act may be engaged[4].
In this case, the Court held that Serbia was not responsible for complicity, due to a lack of evidence of the specific intent required[5]. However, the Court did find it responsible for failing to fulfill its obligation to prevent the Srebrenica genocide[6] and for failing to cooperate with the International Criminal Tribunal for the former Yugoslavia[7].
More recently, in the case Gambia vs. Myanmar, The ICJ reiterated the objective nature of the obligations to prevent genocide, emphasizing that a State must act as soon as there is a serious risk of genocide.[8] Even though the question of complicity was not directly addressed, the Court's decision reinforced the idea that States can be held responsible for their conduct in the face of a risk of genocide.
What actions or omissions fall under the category of complicity?
Complicity can result from positive action, such as supplying weapons, providing funding, training armed forces, or offering logistical or diplomatic support that significantly contributes to the perpetration of genocide. It can also result from inaction, particularly when a state knowingly refrains from ceasing assistance despite being aware of the risk of genocide.
However, the burden of proof is high because it is not enough to demonstrate knowledge of a risk; the ICJ requires proof of a specific intent to facilitate genocide.[9] This restrictive interpretation is criticized by some authors who argue that sufficient knowledge of the risk should establish state responsibility.
In practice, it is therefore more common for States to be held responsible for failing to fulfill the obligation of prevention (Article I), which is based on a more flexible standard, than for complicity in the strict sense of Article III(e). Nevertheless, the possibility of holding a State responsible for complicity remains a major legal tool, particularly in situations where a third State provides decisive support to actors involved in genocide.
- See, for example, ICJ, Reservations to the Convention on the Prevention and Punishment of Genocide, opinion, 28 May 1951; ICTY, Krstic judgment, 2 August 2001; ICTR, Semanza judgment, 15 May 2003. ↑
- ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, February 26, 2007, § 167. ↑
- Draft articles on state responsibility for internationally wrongful acts, 2001, article 16. ↑
- ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007, § 420; see on this subject: CORTEN (O.), «The judgment rendered by the ICJ in the case of the Crime of Genocide (Bosnia and Herzegovina v. Serbia): towards a relaxation of the conditions for engaging the responsibility of a State for genocide?», French Directory of International Law, 2007, vol. 53, p. 277. ↑
- Ibid., § 424. ↑
- Ibid., § 450. ↑
- Ibid., § 449. ↑
- ICJ, Implementation of the Convention on the Prevention and Punishment of the Crime of Genocide (Gambia v. Myanmar), Order, precautionary measures, January 23, 2020. ↑
- ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, February 26, 2007, §§ 421-422; See on this subject: CARLI (E.), «On State Responsibility for Complicity in Genocide: Will South Africa's “All-In Strategy” Be Effective?», EJIL: Talk!, March 5, 2024. ↑
