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State Responsibility and Genocidal Intent: A Three Test Approach

State Responsibility and Genocidal Intent: A Three Test Approach State Responsibility and Genocidal Intent: A Three Test Approach Robin M Smith I. Introduction In 2007, the International Court of Justice (ICJ) handed down its first decision on state responsibility for genocide in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) Case. The ICJ again considered the issue of state responsibility for genocide in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) Case in 2015. Establishing genocidal intent is vital to determining whether genocide has been committed and in distinguishing genocide from other acts such as crimes against humanity. However, ascribing intent, and more particularly the specific intent required for genocide, to an abstract entity such as a state is fraught with difficulty. As the Permanent Court of International Justice held in 1923, ‘states can act only by and through their agents and representatives.’ In this way, acts of genocide are always committed by individuals, albeit under the authority of an entity which is the real orchestrator of these acts. The question for international law is how the dolus specialis of genocide is to be http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png The Australian Year Book of International Law Online Brill

State Responsibility and Genocidal Intent: A Three Test Approach

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Publisher
Brill
Copyright
Copyright © Koninklijke Brill NV, Leiden, The Netherlands
ISSN
0084-7658
DOI
10.1163/26660229-034-01-900000008
Publisher site
See Article on Publisher Site

Abstract

State Responsibility and Genocidal Intent: A Three Test Approach Robin M Smith I. Introduction In 2007, the International Court of Justice (ICJ) handed down its first decision on state responsibility for genocide in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) Case. The ICJ again considered the issue of state responsibility for genocide in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) Case in 2015. Establishing genocidal intent is vital to determining whether genocide has been committed and in distinguishing genocide from other acts such as crimes against humanity. However, ascribing intent, and more particularly the specific intent required for genocide, to an abstract entity such as a state is fraught with difficulty. As the Permanent Court of International Justice held in 1923, ‘states can act only by and through their agents and representatives.’ In this way, acts of genocide are always committed by individuals, albeit under the authority of an entity which is the real orchestrator of these acts. The question for international law is how the dolus specialis of genocide is to be

Journal

The Australian Year Book of International Law Online – Brill

Published: Jan 1, 2017

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