Causal Nexus

By Martin Jan D. Espinosa

The article posits that the criterion used by the court in determining who to
blame in a Genocide is inapt. The author, in trying to address the problem, used the
Naulilaa Incident to showcase Genocide and prove that the causal nexus test will
fails to identify the actors who are directly responsible for the crimes committed in
a genocide.

The author claims that to prove responsibility in genocide, there should be
sufficiently direct causation that links the damage incurred by the victims and the
perpetrators breach of the obligation to prevent genocide. In applying this test, the
court established a standard, according to the author,

[] a difficult, if not impossible, to meet; alas, a test that does not fit the
task at hand, as by the very nature of the act involved, an unbroken link
between it and the supposed damage is already precluded [emphasis
supplied]
1


Following the authors opinion, the cause of a chain of events that will lead to a
series of events, by its very nature, cannot be set-off by inaction or omission a
direct cause-and-effect cannot be obtained.

I am of the opinion that the author is correct in pointing out that the causal
nexus cannot be used as a test to determine responsibility in genocide cases. The
author posits that the language of direct causation is [] usually a positive act,
[] thus kinetically setting off a chain of events that resulted in an injury to
another state.
2
And this positive act cannot be done through inaction or omission
thereof.

Atty. Bagares also pointed out in class that the court in coming up with this
test used a scientific word to coin the test simply because they try to sway form
morality by using scientific terms. The cause and effect theory is borrowed from
physics where an unbroken chain of events are being set off by a proximate act that
is directly connected to the positive act. On its face, the theory or the test might
actually work but in reality, how can someone be responsible in international law
for something he did not do to ought to do to prevent a wrong. I am of the opinion

1
Bagares, Romel R. When Satisfaction is (Not) Satisfactory: The Requirement of Causal Nexus in Claims for
Reparation for Breaches of the Duty Not to Provide Impunity Under the Genocide Convention 2007. p5.
2
Ibid.
that the author is correct and there should be a better criterion for proving
responsibility in cases of genocide.