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Published online by Cambridge University Press: 24 January 2011
Freedom from genocide and the right to life
The prohibition of genocide
344. Every national group – including the civilian population of an occupied territory – has a basic right to existence (i.e., to life) protecting it from genocide. Article I of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide asseverates:
The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent or to punish.
The wording appears at first sight to relate to acts perpetrated by actors other than the Contracting Parties themselves. But in the 2007 Genocide Convention case (Bosnia/Serbia), the International Court of Justice held that – although ‘[t]he article does not expressis verbis require States to refrain from themselves committing genocide’ – such a prohibition follows from the obligation to prevent the commission of genocide. As the Court put it, ‘[i]t would be paradoxical’ if States ‘were not forbidden to commit such acts through their organs’ while they are under obligation to prevent genocide. The Judgment added that the obligation not to commit genocide applies ‘to a State wherever it may be acting or may be able to act’, in a manner that is not limited by territorial bounds. This patently covers occupied territories.
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