Naslov
The Future of the Application of the Genocide Convention - Case Study: Bosnia and Herzegovina v. Serbia, Croatia v. Serbia and Gambia v. Myanmar

Autori
Rusan Novokmet, Rutvica

Vrsta, podvrsta i kategorija rada
Sažeci sa skupova, pp prezentacija, znanstveni

Skup
18th Annual International Conference on Law

Mjesto i datum
Atena, Grčka, 12.07.2021. - 15.07.2021

Vrsta sudjelovanja
Predavanje

Vrsta recenzije
Međunarodna recenzija

Ključne riječi
The Genocide Convention ; international responsibility ; attribution of conduct ; genocidal intent ; effective control test

Sažetak
The adoption of the Convention on the Prevention and Punishment of the Crime of Genocide in 1948 represents a determination of the international community to condemn horrors of the World War II, to define the precise elements of genocide as crime of all crimes, to provide for the judicial mechanisms that can be activated in case of its commission and hopefully, to set a foundation for the prevention of future acts of genocide. Although the Convention prescribes both the responsibility of individuals as well as that of states, this paper seeks to explore the jurisprudence of the International Court of Justice regarding states’ international responsibility for genocide. So far, the Court rendered only two judgments concerning the application of the Genocide Convention. Although in the first case (Bosnia and Herzegovina v. Serbia and Montenegro) the Court established that genocide happened in Srebrenica, it did not find the responsibility of Serbia for committing, conspiring, inciting nor for acting as a complicit in genocide in Bosnia and Herzegovina, only for violating its obligation to prevent genocide in Srebrenica and to punish the perpetrators. In the second case (Croatia v. Serbia) the Court concluded that the acts committed on the territory of Croatia were not committed with the specific intent required for them to be characterized as acts of genocide so the Court dismissed Croatia’s claim in its entirety. In the context of the key legal arguments on the establishment of the international responsibility of a state for genocide adopted by the Court in the mentioned cases, the author assesses their significance by analyzing the most recent case instituted before the Court by the Republic of Gambia regarding the application of the Genocide Convention against the Republic of the Union of Myanmar. Since the case is still in the initial stage, the author puts special emphasis on the Applicant’s legal arguments in regards the basis for the Court’s jurisdiction, the character of the crimes allegedly committed by Myanmar’s military and security forces against the Rohingya, an ethnic and religious minority in Myanmar, the issue of attribution of these acts to the state of Myanmar, and the crucial problem of determining the existence of the genocidal intent (dolus specialis). Since the aforementioned cases show that the Court has set an extraordinarily high standards for finding states responsible for genocide, the author expresses concern about further actions and decisions of the Court in the case against Myanmar. However, the author is confident that the Court will pay due attention to all the relevant factual and legal circumstance of the events in Myanmar and embrace the opportunity to condemn the horrible crimes committed against the Rohingya, even if it means setting a precedent – holding a state internationally responsible for genocide. Is there a more efficient way for preventing future acts of genocide?

Izvorni jezik
Engleski

Znanstvena područja
Pravo

POVEZANOST RADA