The Universality of the Prohibition of the Crime of Genocide, 1948-2008

• Author: Caroline Fournet
• Published date: 01 June 2009
• Date: 01 June 2009
• DOI: http://doi.org/10.1177/1057567709335394
• Subject Matter: Articles

132

International Criminal

Justice Review

Volume 19 Number 2

June 2009 132-149

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The Universality of the

Prohibition of the Crime

of Genocide, 1948-2008

Caroline Fournet

University of Exeter, UK

The year 2008 marks the 60th anniversary of the adoption, under the auspices of the United

Nations, of the Convention for the Prevention and Punishment of the Crime of Genocide, a

legal instrument generally acknowledged as providing for the authoritative definition of geno-

cide. Yet, if this Convention undoubtedly carved into positive international law a widely

accepted definition of the crime, it is nonetheless remarkable that the prohibition of genocide

also finds its origins in the obscure concept of peremptory norms of international law, other-

wise referred to as jus cogens. The present article thus proposes to assess this apparent frag-

mentation of sources and ultimately attempts to evaluate the impact, value, and significance

of the Genocide Convention.

Keywords: jus cogens; prohibition of genocide; and universal jurisdiction

Since its conception, public international law has been plagued by rhetorics and

recourse to the sacralized and dark notions of natural law, divine law, and jus cogens

norms. The idea that international law knows of superior norms, no matter how compel-

ling, sits nonetheless uncomfortably with the very essence of public international law as

a law made by and for states. Indeed, peremptory norms of international law—also known

as jus cogens norms—contain within themselves the concept that international law knows

of certain nonderogable norms, forming a legal corpus to which no exception, restriction,

or limitation of any sort can be formulated. Jus cogens norms thus correspond to absolute

norms—Weil referred to them as “normes à autorité renforcée” (Weil, 1992, p. 262)—with

which states have to comply, regardless of any conventional obligation, and by imposing

a nuclear vision of international law, such norms arguably create a legal hierarchy. As a

closer look at jus cogens norms reveals their undefined status, the international normative

order finds itself confronted to an absurd situation where the peremptory norms, which

must be abided by regardless of any contractual obligation, pertain to the unknown. As

Weil further explained,

Among the charges most currently cited we will solely retain three: the difficulty, confining to

the impossibility, of identifying jus cogens norms; the risk it holds for the stability of treaties;

its essential, almost visceral, incompatibility with the international system’s structure. (Weil,

1992, p. 269)1

The very existence of jus cogens norms is undoubtedly a contentious issue, and even if

one admits that they do exist in international law, fully uncovering the veil of their obscure

Fournet / Prohibition of Genocide 133

content remains an arduous—and arguably overambitious—task. Yet, and notwithstanding

its recognition in positive international law, the crime of genocide has also—on several

occasions—been qualified as a peremptory norm of international law, and this duality of

identities necessarily prompts the twofold question of the necessity of the prohibition of

genocide as a jus cogens norm, on one hand, as well as of the utility of its embodiment in

a specific international treaty. By proposing to analyze this schizophrenia of the law of

genocide, the present article ultimately aims to contemplate whether, 60 years after its

adoption, the Genocide Convention should still be considered as a fundamental instrument

or whether it should merely be seen as a redundant and thus unnecessary text.

The Problem With Jus Cogens: Sources of International Law

Sources of public international law are usually understood, and rightly so, as being based

on state consent. Indeed, Article 38 (1) of the Statute of the International Court of Justice

(ICJ), “widely recognised as the most authoritative statement as to the sources of interna-

tional law” (Shaw, 2003, p. 66), lists a series of sources that are all based on the assumption

of state consent. It accordingly refers to international conventions “expressly recognized by

the contesting states,” to international custom “as evidence of a general practice accepted

as law,” to the general principles of law “recognized by civilized nations,” and to “judicial

decisions and teachings,” which implicitly presuppose state consent, states having arguably

recognized the jurisdiction of the institution giving the judicial decision in question and

having accepted the expertise of the “most highly qualified publicists.” Jus cogens is thus

not expressly listed among the sources of international law and, while this does give cre-

dential to the theory that this category is in reality inexistent, it could nonetheless be argued

that jus cogens relates to the norm rather than to its source.

Furthermore, it could also be submitted that jus cogens norms reside within the—

admit tedly equally vague—concept of “general principles of law recognized by civilized

nations” (ICJ Statute, Article 38 [1]). Due to their alleged normative superiority, it might

indeed be unrealistic—if not dangerous—to contend that such norms could ever be encap-

sulated in a broader category, sitting outside the ambit of Article 38 and yet cohabiting with

the supposedly inferior norms listed therein. To put it differently, jus cogens norms and

“general principles of law recognized by civilized nations” might thus cover the exact same

reality. Other than locating jus cogens norms within the ambit of Article 38 (1), it must be

conceded that this reasoning is not as helpful as it could be, due to the fact that the general

principles of law are also deprived of any authoritative definition. As Professor Shaw

recalled,

Some writers regard it as an affirmation of Natural Law concepts, which are deemed to under-

lie the system of international law and constitute the method for testing the validity of the

positive (i.e., man-made) rules. Other writers, particularly positivists, treat it as a subheading

under treaty and customary law and incapable of adding anything new to international law

unless it reflects the consent of states. (Shaw, 2003, pp. 93-94)

This definitional opacity notwithstanding, the expression of civilized nations here

deserves further exploration. Indeed, leaving aside any moral understanding of the notion