Application of the Convention on the Prevention and Punishment of the Crime of Genocide

(Bosnia and Herzegovina v. Serbia and Montenegro)

I.C.J., 2007 I.C.J. 191

Synopsis of Rule of Law. The obligation under the Genocide Convention binds the contracting
parties to the Convention not to commit, through their organs or persons or groups whose
conduct is attributable to them, genocide and the other acts enumerated in Article II.

Facts:

A suit was brought against the Federal Republic of Yugoslavia (Serbia and Montenegro) (D)
under the Genocide Convention by Bosnia and Herzegovina (P). The plaintiffs alleged that
Serbia (D) contravened the Convention by committing genocide against Bosnias (P) Muslim
population. The International Court of Justice in this first part of the case threw more light on
the provisions of the Genocide Convention, including the undertaking to prevent and punish
genocide in Article I, the definition of genocide in Article II, and the phase responsibility of a
State for genocide in Article IX.

Issues:

1.) Are the obligation under the Genocide Convention binding on the contracting parties?

2.) Do they prevent the parties from committing, through their organs or persons or groups
whose conducts are attributable to them, genocide and other acts enumerated in Article II?

Ruling:

Yes. The obligation under the Genocide Convention binds the contracting parties to the
Convention not to commit, through their organs or persons or group whose conduct is
attributable to them, genocide and other acts enumerated in Article II. The obligation imposed
on the parties is dependent on the ordinary meaning of the terms of the Convention, read in
context and in light of the Conventions object and purpose. Resorting to supplementary means
of interpretation, including the Conventions preparatory work and the circumstances of its
conclusion are the means of resolving the confusions associated to terms, context and purpose.

The parties under the Convention are under an obligation not to commit genocide
themselves. This obligation is not imposed expressly by the Convention but the effect of Article
II is to prohibit states from committing genocide themselves. The logic behind the Convention is
that the prohibition follows from the fact that the Article categorizes genocide as an
international law crime and by agreeing to such a categorization, the parties must logically
undertake not to commit the act described. It also follows from the expressly stated obligation
to prevent the commission of acts of genocide.

Serbia (D) further postulated that the drafting history of the Convention shows that the states
are not directly responsible under the Convention for acts of genocide, but heat states have
civil responsibility to prevent and punish genocide committed by individuals. The drafting
history also throws more light on the fact the Chairman of the Sixth Committee believed that
Article IX as modified provided for state responsibility for genocide.

Discussion

Serbias (D) violations of its obligation stems not only from the Genocide Convention, but also
from two protective measures issued by the I.C.J. in April and September 1993, under which the
former Federal Republic of Yugoslavia was ordered explicitly to prevent the crimes of genocide
and to make sure that such crimes were not committed by military or paramilitary formations
operating under its control or with its support. Serbia (D) did not make any effort to prevent the
July 1995 Srebrenica massacre despite the order, although according to the I.C.J, it should have
been aware of the serious danger that acts of genocide would be committed.

Glamis Gold Ltd. v. U.S.

Award of 8 June 2009, [2009] 48 I.L.M. 1039, 355 (ICSID)

Facts:

The case was filed against the US government by Glamis Gold, a Canadian mining company
engaged in the mining of precious metals. The project area was located within the California
Desert Conservation Area, and designated areas of special cultural concern, and near, though
not on, the Quechan Indian Tribes reservation lands. California legislation prohibits both state
agencies and private parties operating on public property from using the land in such manner
that would cause severe or irreparable damage to any Native American sanctified cemetery,
place of worship, religious or ceremonial site, or sacred shrine. California also effectuated new
regulatory measures, which included requiring backfilling and grading for mining operations in
the vicinity of Native American sacred sites. Glamis challenged the latter measures, contending
they were arbitrary and discriminatory, designed to block their project rather than genuinely
address environmental and cultural concerns associated with mining activities generally. Glamis
also argued that the cost of complying with these measures reduced the project to a negative
value, and therefore constituted expropriation, in violation of the North American Free Trade
Association (NAFTA).

Issue:

Whether certain federal and state regulatory measures expropriated Glamis mineral rights to
mine gold in southeastern California, and that Glamis was denied fair and equitable
treatment in its attempt to utilize those rights, in violation of United States obligations under
NAFTA.

Ruling:

The Arbitral Tribunal constituted under Chapter 11 of the North American Free Trade
Agreement dismissed Glamis's claim in its entirety and ordered Glamis to pay two-thirds of the
arbitration costs.

The Tribunal dismissed both of Glamis claims in favor of the US Government and the State of
California. In relation to the expropriation claim, the Tribunal held that Glamis' mining rights
still retained significant value and the State actions fell short of expropriation. With respect to
Glamis claim of arbitrary and discriminatory action, the Tribunal noted that, in 2001, the Free
Trade Commission (FTC) stated, in its binding Notes of Interpretation, that Article 1105(1)
prescribes the customary international law minimum standard of treatment of [non-nationals]
as the minimum standard of treatment to be afforded to investments of investors of another
Party.

The tribunal concluded that the customary international law standard had not significantly
changed from the egregious and shocking standard established in Neer v. Mexico, 4 R. Intl
Arb. Awards, 60-62 (Oct. 15, 1926). In this context, the Tribunal applied the Neer test to the
challenged measures, and accordingly assessed whether there had been a gross denial of
justice, manifest arbitrariness, blatant unfairness, a complete lack of due process, evident
discrimination, or a manifest lack of reasons. Determining that this was not the case, the
Tribunal rejected the claim that the measures were in violation of NAFTAs fair and equitable
treatment standard.

Significance of the Case

Glamis Golds mining project in Southeastern California was opposed by the members of
Quechan Indian Nation, who filed an amicus, arguing the mining project would damage historic
resources and that the Nations ability to practice their sacred traditions as a living part of their
community life and development would be lost. The case is particularly significant because the
Tribunal in this international investment arbitration made the unprecedented decision of
allowing an indigenous community to submit an amicus, thus increasing the overall
participation and transparency of the Tribunal. This expanded the concept of potential third
party interveners beyond civil society organizations. Moreover, the Glamis decision sets
a higher bar than past NAFTA tribunals have required for establishing violation of the fair and
equitable treatment requirement under NAFTA. NATFAs pro-government framework goes
beyond U.S. law to maximize the ability to protect indigenous peoples rights, irrespective of
the associated costs to the investor.